Portumo - Madeira - Montagem e Manutenção de Tubaria, SA (Zona Franca da Madeira) and Others v European Commission (T-713/22)

Contents

Judgment of the General Court (Fifth Chamber)6 November 2024^note(State aid — Madeira Free Zone — Aid scheme implemented by Portugal — Decision finding that the scheme does not comply with Decisions C(2007) 3037 final and C(2013) 4043 final, declaring that scheme to be incompatible with the internal market and ordering recovery of aid paid under it — Concept of existing aid within the meaning of Article 1(b)(ii) of Regulation (EU) 2015/1589 — Recovery — Legitimate expectations — Legal certainty — Freedom to provide services — Freedom of establishment — Freedom of movement for workers)In Cases T‑713/22 and T‑720/22,Portumo – Madeira – Montagem e Manutenção de Tubaria, SA (Zona Franca da Madeira), established in Funchal (Portugal),Ponticelli – Consultadoria Técnica, SA (Zona Franca da Madeira), established in Funchal,Ponticelli Angoil – Serviços Para a Indústria Petrolífera, SA (Zona Franca da Madeira), established in Funchal,represented by M. Muñoz Pérez and P. Casillas Vázquez, lawyers,Nova Ship Invest, Unipessoal, Lda (Zona Franca da Madeira), established in Funchal, represented by M. Muñoz Pérez and P. Casillas Vázquez,vEuropean Commission, represented by I. Barcew and P. Caro de Sousa, acting as Agents,THE GENERAL COURT (Fifth Chamber),composed of J. Svenningsen, President, J. Martín y Pérez de Nanclares and M. Stancu (Rapporteur), Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure, in particular the decisions of 16 January 2023 not to stay the proceedings pending the decision of the Court of Justice closing the proceedings in the case which subsequently gave rise to the judgment of 4 July 2024, Portugal v Commission (Madeira Free Zone), C‑736/22 P, not published, EU:C:2024:579),further to the hearing on 21 February 2024,gives the following

Judgment

1By their actions under Article 263 TFEU, the applicants, Portumo – Madeira – Montagem e Manutenção de Tubaria, SA (Zona Franca da Madeira), Ponticelli – Consultadoria Técnica, SA (Zona Franca da Madeira) and Ponticelli Angoil – Serviços Para a Indústria Petrolífera, SA (Zona Franca da Madeira), and Nova Ship Invest, Unipessoal, Lda (Zona Franca da Madeira), seek annulment of Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) – Regime III (OJ 2022 L 217, p. 49) (‘the contested decision’).

Background to the dispute

2The Madeira Free Zone scheme in Madeira (Portugal) (‘MFZ’) takes the form of various tax benefits granted in the framework of the Centro Internacional de Negócios da Madeira (International Business Centre of Madeira), the Registo Internacional de Navios da Madeira (International Shipping Register of Madeira) and the Zona Franca Industrial (Industrial Free Trade Zone).

3That scheme was initially approved in 1987 by the Commission Decision of 27 May 1987 in case N 204/86 (SG(87) D/6736) as regional aid compatible with the single market. The extension of that scheme was then authorised by the Commission Decision of 27 January 1992 in case E 13/91 (SG(92) D/1118), and then by the Commission Decision of 3 February 1995 in case E 19/94 (SG(95) D/1287).

4Its successor scheme (‘Regime II’) was authorised by the Commission Decision of 11 December 2002 in case N 222A/01 (‘the 2002 decision’).

5Under the Guidelines on national regional aid for 2007-2013 (OJ 2006 C 54, p. 13) (‘the 2007 guidelines’), a third scheme (‘Regime III’) was authorised by the Commission Decision of 27 June 2007 in case N 421/2006 (‘the 2007 decision’), for the period 1 January 2007 to 31 December 2013. The European Commission authorised that scheme as operating aid compatible with the internal market aiming at the promotion of regional development and diversification of the economic structure of Madeira, as an outermost region within the meaning of Article 299(2) EC (now Article 349 TFEU).

6Regime III takes the form of a reduction in corporate income tax (‘CIT’) on profits resulting from activities effectively and materially performed in Madeira (3% from 2007 to 2009, 4% from 2010 to 2012 and 5% from 2013 to 2020), an exemption from municipal and local taxes and an exemption from tax on the transfer of immovable property for the setting up of a business in the MFZ, up to maximum aid amounts based on the taxable base ceilings applicable to the beneficiaries’ annual taxable base. Those ceilings are set according to the number of jobs held by the beneficiary each year. In certain circumstances, companies registered in the MFZ Industrial Free Trade Zone can benefit from a further 50% reduction in CIT.

7Access to Regime III was restricted to the activities set out in a list included in the 2007 decision. In addition, all financial intermediation, insurance and auxiliary financial and insurance-related activities and all ‘intra-group services’ activities (coordination, treasury and distribution centres), as ‘services provided mainly to companies’, were excluded from the scope of Regime III.

8An amended version of Regime III was authorised by the Commission Decision of 2 July 2013 in case SA.34160 (2011/N) (‘the 2013 decision’), for the period 1 January to 31 December 2013. That version retains the terms laid down by Regime III, although with an increase of 36.7% in the taxable base ceilings to which the reduction in CIT applies.

9Subsequently, the extension until 30 June 2014 of Regime III, as amended, was authorised by the Commission Decision on 26 November 2013 in case SA.37668 (2013/N). The extension of that scheme until the end of 2014 was authorised by the Commission Decision of 8 May 2014 in case SA.38586 (2014/N).

10On 12 March 2015, under Article 108(1) TFEU and Article 17(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), the Commission commenced a monitoring exercise in respect of Regime III relating to 2012 and 2013.

11By letter of 6 July 2018, the Commission informed the Portuguese Republic that it had decided to initiate the formal investigation procedure under Article 108(2) TFEU in relation to Regime III (OJ 2019 C 101, p. 7) (‘the decision to initiate the formal procedure’).

12That procedure was initiated as a result of the Commission’s doubts concerning, first, the application of the tax exemptions for income from activities effectively and materially performed in the Autonomous Region of Madeira (‘the ARM’) and, second, the link between the amount of the aid and the creation or maintenance of genuine jobs in Madeira.

13On conclusion of that procedure, the Commission adopted the contested decision, the operative part of which reads as follows:‘Article 1The aid scheme “Zona Franca da Madeira (ZFM) – Regime III”, to the extent that it was implemented by Portugal in breach of [the 2007 decision] and of [the 2013 decision], was unlawfully put into effect by Portugal in breach of Article 108(3) [TFEU] and is incompatible with the internal market.Article 2Individual aid granted under the scheme referred to in Article 1 does not constitute aid if, at the time it is granted, it fulfils the conditions laid down by a regulation adopted pursuant to Article 2 of Regulation (EU) 2015/1588 which is applicable at the time the aid is granted.Article 3Individual aid granted under the scheme referred to in Article 1 which, at the time it is granted, fulfils the conditions laid down by the Decisions referred to in Article 1 or laid down by a regulation adopted pursuant to Article 1 of Regulation … 2015/1588 is compatible with the internal market up to maximum aid intensities applicable to that type of aid.Article 41. Portugal shall recover the incompatible aid granted under the scheme referred to in Article 1 from the beneficiaries.…4. Portugal shall abolish the incompatible aid scheme to the extent referred to in Article 1 and cancel all outstanding payments of aid with effect from the date of notification of this Decision.Article 51. Recovery of the aid granted under the scheme referred to in Article 1 shall be immediate and effective.2. Portugal shall ensure that this Decision is implemented within eight months following the date of notification of this Decision.…’

Forms of order sought

14The applicants claim, in essence, that the Court should:– annul the contested decision;– in the alternative, annul Article 4(1) of the contested decision and the recovery order contained therein;– order the Commission to pay the costs.

15The Commission claims that the Court should:– dismiss the action;– order the applicants to pay the costs.

Law

16After hearing the parties, the Court decides to join Cases T‑713/22 and T‑720/22 for the purposes of the present judgment, in accordance with Article 68(1) of the Rules of Procedure of the General Court.

17In support of their action, the applicants put forward four pleas in law alleging, in essence, that the Commission erred in law by finding that Regime III had been implemented by the Portuguese Republic in breach of the 2007 and 2013 decisions, the 2007 guidelines and Article 107(3)(a) TFEU, and by interpreting the conditions for accessing that scheme restrictively and in a manner which infringes Articles 21, 45, 49, 54 and 56 TFEU (first plea in law); that the Commission erred in law in so far as the examination of the compatibility of Regime III was not carried out directly and solely on the basis of Article 107(3)(a) TFEU, is based on a misinterpretation of the 2007 guidelines which conflicts with that provision, and fails to apply the principles of free movement of citizens and of workers, freedom of establishment and freedom to provide services (second plea in law); and that the recovery order in Article 4(1) of the contested decision is unlawful (third and fourth pleas in law).

The first plea in law, alleging that the Commission erred in law by finding that Regime III had been implemented by the Portuguese Republic in breach of the 2007 and 2013 decisions, the 2007 guidelines and Article 107(3)(a) TFEU, and by interpreting the conditions for accessing that scheme restrictively and in a manner which infringes Articles 21, 45, 49, 54 and 56 TFEU

Subject matter of the first plea in law

18By their first plea, the applicants claim, in essence, that the Portuguese authorities correctly interpreted and implemented Regime III, as authorised by the Commission in the 2007 and 2013 decisions and, accordingly, that the Commission erred in law by finding that, when implementing that scheme, the Portuguese authorities had failed to apply correctly, first, the condition relating to the origin of the profits to which the reduced CIT applies and, second, the condition relating to the creation or maintenance of jobs in the ARM, both of which were introduced by Regime II. The applicants also claim that the Commission erred in law by finding that the Portuguese authorities had not carried out suitable and effective tax controls in order to verify compliance, by the beneficiaries, with those two conditions.

19In that regard, it should be noted that, where an applicant claims that the Commission has found, incorrectly, that the manner of implementing the payment of individual aid under a previously authorised aid scheme did not comply with that prior authorisation, that party’s arguments must be understood as criticising the Commission for refusing to afford that aid the legal classification of ‘existing aid’ within the meaning of Article 1(b)(ii) 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), that is to say, as an aid scheme or individual aid authorised by the Commission or the Council of the European Union (judgment of 21 September 2022, Portugal v Commission (Madeira Free Zone), T‑95/21, EU:T:2022:567, paragraph 100).

20Consequently, the first plea should be understood as seeking, in essence, to challenge the fact that, in recitals 150 to 180 and 228 and Article 1 of the contested decision, the Commission did not treat Regime III, as implemented, as ‘existing aid’ within the meaning of Article 1(b)(ii) of Regulation 2015/1589, the compatibility of which should have been assessed in the context of the constant review of existing aid schemes provided for in Article 108(1) TFEU, but instead classified it, in recital 180 of the contested decision, as ‘unlawful’ aid and, accordingly, as ‘new aid’ within the meaning of Article 1(c) of Regulation 2015/1589, in infringement of Article 108(3) TFEU.

Merits of the first plea in law

21As regards, in the first place, the condition concerning the origin of the profits to which the reduction in CIT applies, the applicants submit that the Commission erred in law in its interpretation of that condition by finding that activities performed outside the ARM by companies registered in the MFZ could not benefit from the reduced CIT. That interpretation of the terms ‘activities effectively and materially performed in Madeira’ adopted by the Commission in the contested decision is overly restrictive and is incompatible with the usual meaning of that expression when used in the context of a tax scheme and with the context of and the objectives pursued by the rules of which it is part. Furthermore, such an interpretation infringes Articles 49 and 56 TFEU inasmuch as it introduces restrictions on freedom of establishment and on freedom to provide services which are neither appropriate nor proportionate for the purposes of attaining the objective pursued by the 2007 and 2013 decisions.

22Accordingly, first, the applicants claim that an interpretation of the terms ‘activities effectively and materially performed in Madeira’ must take into account the scope given to those terms in the field of international taxation, in particular in the Organisation for Economic Co-operation and Development (OECD) Action Plan on Base Erosion and Profit Shifting and in the general guiding principles concerning the evaluation of measures under that action plan. In that field, it is generally accepted that income from an activity carried on by an entity is attributable to the entity’s place of tax residence or of effective management, provided it carries on a substantial activity in that place.

23Second, as regards the context in which the terms ‘activities effectively and materially performed in Madeira’ have been used, the applicants submit that, unlike the case of regional investment aid, for regional operating aid, such as Regime III, the 2007 guidelines do not expressly establish a link between the activities eligible for the aid and the geographical area of the region in question.

24Third, as regards the objectives pursued by the rules of which those terms form part, the applicants submit that under Article 107(3)(a) TFEU the sole condition for regional aid for outermost regions to be permissible is that the aid must contribute to their development, independently of whether it compensates for the additional costs resulting from the remoteness of those regions. Furthermore, a restrictive interpretation of the terms ‘activities effectively and materially performed in Madeira’ would be contrary to the effectiveness of the 2007 decision and the objective it pursues, since there would be a whole series of activities which, although listed in that decision as eligible to benefit from Regime III, could not, in practice, benefit from it.

25Fourth, the applicants claim that the interpretation of the terms ‘activities effectively and materially performed in Madeira’ used by the Commission in the contested decision entails restrictions on freedom of establishment and freedom to provide services, which infringe Articles 49 and 56 TFEU, in so far as it discourages entities registered in the MFZ from carrying on their activity outside the ARM. Such restrictions are neither appropriate nor proportionate for the purposes of attaining the objective that the 2007 and 2013 decisions are required to pursue, namely that of contributing to the economic development of the ARM.

26As regards, in the second place, the condition relating to the creation or maintenance of jobs in the ARM, the applicants maintain that the Commission committed several errors of law in its interpretation of that condition.

27First, the applicants criticise the Commission for finding, in the contested decision, that in order to calculate the number of jobs created or maintained, for each Regime III beneficiary, the Portuguese authorities should have used the methodology whereby jobs are defined in Full-Time Equivalents (FTE) and Annual Labour Units (ALU).

28Since the word ‘job’ is not defined in the 2007 and 2013 decisions, the term should have been understood with its usual meaning, that is to say, as referring to any kind of employment relationship giving rise for taxation purposes to an obligation to pay social security contributions and to make withholdings from salary paid, irrespective of the time investment that that relationship entails and therefore irrespective of the equivalent in ALU of the work performed. That usual meaning is, moreover, in keeping with the context of the 2007 and 2013 decisions and with their objective, namely to contribute to the economic development of the ARM. The applicants also state that, since there is no uniform definition at EU level, the Portuguese authorities were entitled to use the concept of ‘job’ within the meaning of Portuguese law, which constituted a clear and objective criterion for determining whether or not the beneficiaries had created jobs. Finally, the objective of the creation or maintenance of jobs in the ARM is, according to the applicants, merely ancillary to the primary aim of Regime III, namely that of contributing to the economic development of that region.

29Second, the applicants dispute the Commission’s finding that only jobs created and maintained in the ARM must be taken into account in order to verify the correct application of the condition relating to the creation or maintenance of jobs, claiming that that finding infringes the principles of free movement, including the free movement of workers, laid down in Articles 21 and 45 TFEU, by making it more difficult either for a worker employed by an undertaking established in the MFZ to reside and carry on his or her professional activity elsewhere than in the ARM, or for such an undertaking to recruit workers who do not reside or who do not wish to reside in that region.

30Third, Nova Ship Invest, Unipessoal (Zona Franca da Madeira) adds that holding companies are not subject to the condition relating to the creation and maintenance of jobs in the ARM, which means that the Commission erred in law in the contested decision since, when analysing compliance with that condition, it did not qualify its analysis in the slightest according to the type of beneficiary undertaking.

31As regards, in the third place, the tax controls carried out by the Portuguese authorities in order to verify the correct application of the conditions relating to, first, the origin of the profits to which the reduction in CIT applies and, second, the creation or maintenance of jobs in the ARM, the applicants claim that the Commission erred in law by finding, in the contested decision, that the tax controls conducted did not enable verification of whether the beneficiaries had complied with those two conditions for accessing Regime III.

32The Commission disputes those arguments.

–The condition relating to the origin of the profits to which the reduction in CIT applies

33The applicants’ arguments make it necessary to determine whether, notwithstanding the wording of Regime III or of the 2007 and 2013 decisions, which impose as a condition for the grant of the aid authorised that the profits of companies registered in the MFZ must be from activities ‘effectively and materially performed in Madeira’, the Portuguese authorities could, without infringing those decisions, also grant the aid under that scheme for profits from activities performed outside the ARM.

34In that regard, it is settled case-law that the meaning and scope of terms for which EU law provides no definition must be determined by reference to their usual meaning, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see judgment of 27 January 2022, Zinātnes parks, C‑347/20, EU:C:2022:59, paragraph 42 and the case-law cited).

35Contrary to the applicants’ claims, the terms ‘activities effectively and materially performed in Madeira’, in their usual meaning, cannot be interpreted as referring to activities carried on outside the ARM, even by companies registered in the MFZ.

36That conclusion is supported by the context of the contested decision and by the objectives pursued by the EU rules on State aid, in particular the rules applicable to regional aid.

37First of all, it is clear from the decisions authorising Regimes II and III that, during the administrative procedures leading to those decisions, the Commission and the Portuguese authorities at all times concurred as to the interpretation to be given to the terms ‘activities effectively and materially performed in Madeira’. The EU Courts cannot disregard that fact for the purposes of defining the precise scope of a notified aid scheme, even if the applicants have not been informed of it (see, to that effect, judgment of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 45).

38It can be seen from the 2002 decision that, in the course of the administrative procedure leading to that decision, the Portuguese authorities stated that the ‘tax benefits [would] be limited to activities effectively and materially performed in Madeira, thereby enabling activities carried on outside Madeira to be excluded’.

39Similarly, as is clear from recital 226 of the contested decision, the Commission ‘had requested the introduction of an express provision in the draft law notified by [the Portuguese Republic] on 28 June 2006 establishing that the tax reductions would be restricted to profits resulting from activities carried out in Madeira’, which the Portuguese Republic declined to introduce, on the ground that ‘such provision was not necessary as this fact derived from the [MFZ] legal basis’.

40Next, the terms of the 2007 and 2013 decisions, assuming that they can be regarded as being ambiguous, must be interpreted in a manner consistent with their legal bases, that is to say, Article 87(3)(a) EC (now Article 107(3)(a) TFEU) and Article 107(3)(a) TFEU respectively, and with the 2007 guidelines.

41Furthermore, all derogations from the general principle that State aid is incompatible with the internal market, set out in Article 107(1) TFEU, must be construed narrowly (see judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 20 and the case-law cited).

42In addition, as the Commission correctly observed in recitals 153 and 154 of the contested decision, the 2007 guidelines, in particular paragraphs 6 and 76 thereof, state that operating aid may be granted exceptionally in regions eligible under the derogation in Article 87(3)(a) EC (now Article 107(3)(a) TFEU), such as the ARM, which the Commission has recognised as having outermost region status, provided that the aid is justified in terms of its contribution to regional development and its nature and that its level is proportionate to the handicaps it seeks to alleviate.

43As is apparent from recital 156 of the contested decision, the raison d’être of regional operating aid for outermost regions is to compensate for the additional costs that undertakings incur in such regions as a result of the handicaps to which those regions are subject, such as those listed in recital 155 of the contested decision. As a result, only activities that are affected by the handicaps, and therefore by the additional costs inherent in those regions, must be eligible for such operating aid.

44Activities carried on outside those regions and which, for that reason, are not affected by those additional costs, may therefore be excluded from entitlement to that aid, even if they are carried on by companies established in those regions.

45Finally, as the Commission correctly stated in recital 157 of the contested decision, the compatibility of Regime III was evaluated, in the 2007 decision, on the basis of the additional costs borne by undertakings that carry on their activity in the ARM, rather than outside it.

46It is in fact apparent from recitals 44 to 53 of the 2007 decision that the Commission relied on a study, provided by the Portuguese authorities, quantifying the ‘additional costs incurred by the private sector in the [ARM]’. Moreover, the additional costs taken into consideration, that is to say, inter alia, transport, stock, human resources, financing and marketing costs, are those incurred as a result of the activities effectively and materially carried on in the ARM, rather than by the activities carried on outside that region by companies registered in it. Finally, that finding is borne out by the fact that, in recital 48 of the 2007 decision, the Commission understood the additional costs at issue as a percentage of only the ARM private sector gross value added or its gross domestic product.

47Consequently, in addition to having no basis in the wording and context of the 2007 and 2013 decisions, the broad interpretation of the terms ‘activities effectively and materially performed in Madeira’ advocated by the applicants is incompatible not only with the objectives pursued by Article 87(3)(a) EC and Article 107(3)(a) TFEU, which formed the legal bases of the 2007 and 2013 decisions respectively, but also with the 2007 guidelines.

48In that regard, even if, as the applicants claim, the interpretation used by the Commission were different from that used in the OECD Action Plan on Base Erosion and Profit Shifting and, in particular, in the general guiding principles concerning the evaluation of measures under that plan, that fact could not alter the foregoing conclusion.

49Although the Commission may take into consideration texts adopted within the framework of the OECD, it cannot in any respect be bound by them, in particular when applying the rules of the TFEU, especially those on State aid (see, to that effect, judgment of 12 May 2021, Luxembourg and Amazon v Commission, T‑816/17 and T‑318/18, EU:T:2021:252, paragraph 154, and Opinion of Advocate General Kokott in État luxembourgeois (Information on a group of taxpayers), C‑437/19, EU:C:2021:450, point 67).

50The Commission therefore did not err in law when it found, in recital 167 of the contested decision, in relation to the condition concerning the origin of the profits to which the reduction in CIT was applied, that Regime III, as implemented, was in breach of the 2007 and 2013 decisions.

51Nor can that conclusion be undermined by the applicants’ line of argument that, by interpreting the terms ‘activities effectively and materially performed in Madeira’ as not referring to activities performed outside that region by companies registered in the MFZ, the Commission, first, failed to take sufficient account of the fact that Regime III, as regional operating aid for outermost regions, was intended essentially to contribute to the economic development of the region, since undertakings can contribute to that economic development irrespective of the place where they materially perform their activities, and, second, that it infringed the principles of freedom of establishment and freedom to provide services.

52First, as regards the alleged failure to take sufficiently into consideration the purported objective of Regime III, as regional operating aid for outermost regions, which consists, according to the applicants, essentially in contributing to the economic development of those regions, rather than in compensating for the additional costs borne by undertakings established in those regions in view of the structural handicaps from which they suffer, it should be noted that, by that claim, the applicants are not seeking to question the Commission’s finding that Regime III, as implemented, fails to comply with the 2007 and 2013 decisions and, consequently, the legal classification of that scheme as ‘new aid’ within the meaning of Article 1(c) of Regulation 2015/1589, granted in infringement of Article 108(3) TFEU.

53On the contrary, the applicants are by implication seeking to challenge the assessment of the compatibility of Regime III made in the 2007 and 2013 decisions, which have become final, whilst their arguments cannot for that reason be interpreted as raising a plea of illegality in respect of those decisions within the meaning of Article 277 TFEU.

54In any event, the applicants’ arguments rely on the incorrect premiss that the objective of Regime III, as regional operating aid for an outermost region, is essentially to contribute to the economic development of the ARM, and only on an ancillary basis to compensate for the additional costs inherent in the ARM.

55As already observed in paragraphs 35 to 47 above, it is unambiguously apparent both from the wording of the 2007 and 2013 decisions and from the objectives of the EU rules on regional State aid in the outermost regions, which form the basis of those decisions, that the fact that the aid compensates in due proportion for the additional costs inherent in the ARM is a key factor that led the Commission to find that Regime III was compatible.

56Second, as regards the claim of infringement of the principles of free movement of citizens, freedom of establishment and freedom to provide services, it should be noted that that claim cannot succeed.

57In view of the fact that the Court has found in paragraph 47 above that, in the contested decision, the Commission interpreted the condition relating to the origin of profits not only in accordance with the wording and context of the 2007 and 2013 decisions but also in accordance with the objectives pursued by the EU rules on State aid, the applicants are ultimately not questioning the interpretation of that condition in the contested decision but the interpretation of that condition adopted by the Commission in the 2007 and 2013 decisions in order to find Regime III to be compatible.

58The applicants have not, either expressly or by implication, raised a plea of illegality in respect of the 2007 and 2013 decisions. They have not made clear in what respect those two decisions allegedly infringe the principles of free movement of citizens, freedom of establishment and freedom to provide services.

59To the extent that those arguments can be understood as seeking, on the basis of the principles referred to in paragraph 58 above, to challenge the finding that Regime III, as implemented, is incompatible, that criticism will be examined, in paragraphs 98 to 105 hereof, in the context of the assessment of the merits of the second plea in law raised by the applicants.

60In the light of the foregoing, the Commission did not commit any error of law in its interpretation of the condition, laid down in the 2007 and 2013 decisions, that the reductions in CIT provided for by Regime III could relate only to profits resulting from activities ‘effectively and materially performed in Madeira’.

–The condition relating to the creation or maintenance of jobs in the ARM

61The applicants criticise the Commission, in essence, for incorrectly requiring the Portuguese Republic to use the FTE and ALU methods, to the exclusion of the concept of ‘job’ within the meaning of Portuguese law, or at the very least for requiring it to use an objective method to calculate the time effectively worked by each holder of a job conferring eligibility for Regime III, for the purposes of verifying compliance with the condition relating to the creation or maintenance of jobs in the ARM, contrary to the objectives of Regime III and the principles of free movement.

62However, the applicants’ first argument stems from a misreading of the contested decision.

63The conclusion that Regime III, as implemented, contravenes the 2007 and 2013 decisions is in reality not founded on the fact that the Portuguese authorities did not use the FTE and ALU methods to determine whether the condition relating to the creation or maintenance of jobs in the ARM was fulfilled. That conclusion is based on the finding, in recital 176 of the contested decision, that the method used by the Portuguese authorities to calculate the number of jobs created or maintained in the ARM did not enable verification of the reality or permanence of the jobs declared by the beneficiaries of that scheme.

64That conclusion is substantiated to the requisite legal standard by recitals 28 and 175 of the contested decision, according to which, under the method used by the Portuguese authorities, a job for the purposes of applying Regime III included any employment declared by the beneficiaries, whatever its legal nature and irrespective of the number of hours, days, and months of active labour per year, including part-time jobs and the jobs of board members who were occupied in more than one Regime III beneficiary company.

65Since the contested decision is not based on the finding that the Portuguese authorities failed to use the FTE and ALU methods to calculate the number of jobs, the applicants’ arguments criticising the Commission for incorrectly requiring the use of those methods must be rejected.

66Furthermore, it is also necessary to reject the applicants’ argument that the Commission was not entitled, for the purposes of determining whether the condition in question was satisfied, to require the Portuguese Republic to use an objective method of calculating the time effectively worked by each holder of a job conferring eligibility for Regime III, taking into account in particular the fact that the creation or maintenance of jobs in the ARM is, according to the applicants, a merely ancillary objective of Regime III.

67First, as the Commission observed, correctly, in recital 169 of the contested decision, it is expressly stated in the 2007 decision (see, in particular, recital 64 thereof) and in the 2013 decision (see, in particular, recital 28 thereof) that the condition in question was a condition for accessing Regime III and that it was a parameter for calculating the amounts of aid paid under the MFZ scheme, as it had been notified by the Portuguese Republic and approved by both those decisions (see, to that effect, judgment of 21 September 2022, Portugal v Commission (Madeira Free Zone), T‑95/21, EU:T:2022:567, paragraph 160).

68Second, as has already been noted in paragraph 41 above, derogations from the general principle that State aid is incompatible with the internal market, set out in Article 107(1) TFEU, must be construed narrowly. That requirement means that interpretation of the conditions for granting aid under a scheme authorised by the Commission cannot be left entirely at the discretion of the Member State concerned, including on the pretext of complying with the principle of institutional and procedural autonomy.

69That is particularly so since, in the present case, it cannot validly be argued that the obligation to use an objective method of calculating the time effectively worked by each holder of a job conferring eligibility for Regime III interferes with Portuguese law. That obligation to use an objective method of calculation does not prevent account from being taken of any form of employment relationship established in Portuguese law. Moreover, that obligation to use such a method of calculation is imposed only for the purposes of assessing the compatibility of Regime III and the correct implementation of the 2007 and 2013 decisions.

70On the same grounds as those indicated in paragraphs 56 and 58 above, the claim that the Commission’s interpretation of the condition relating to the creation or maintenance of jobs in the ARM infringes the principles of free movement of citizens and of workers must be rejected.

71Nevertheless, if that argument is to be understood as seeking, on the basis of the principles referred to in paragraph 70 above, to challenge the finding that Regime III, as implemented, is incompatible, that criticism will be examined in paragraphs 98 to 105 below, in the context of assessment of the merits of the second plea in law raised by the applicants.

72Finally, the Court must reject as ineffective the additional argument put forward by Nova Ship Invest, Unipessoal (Zona Franca da Madeira), that the Commission erred in law in the contested decision in so far as, when it analysed compliance with the condition relating to the creation or maintenance of jobs in the ARM, it did not qualify its analysis in the slightest according to the type of beneficiary undertaking, even though holding companies are not subject to such a condition.

73It should be noted in that regard, first, that, in its application, Nova Ship Invest, Unipessoal (Zona Franca da Madeira) merely sets out that argument without thereby claiming that it is itself a holding company.

74Second, although in response to a question on that point put by the Court at the hearing, Nova Ship Invest, Unipessoal (Zona Franca da Madeira) stated that it is itself a holding company, the fact remains that it has not submitted any evidence capable of supporting that claim, since it merely referred to Annex A.3 to the application, that is to say, an authorisation, of 29 December 2000, to operate in the MFZ, issued to an undertaking which it appears to have succeeded, the company objects of which apparently include, inter alia, the management of company holdings.

75Nevertheless, that document does not show that the company objects of Nova Ship Invest, Unipessoal (Zona Franca da Madeira) consist exclusively in the management of company holdings and that it is therefore a holding company.

76Consequently, the Commission did not err in law when it found, in recital 179 of the contested decision, that Regime III, as implemented, infringed the condition relating to the creation and maintenance of jobs in the ARM.

–The effectiveness of the tax controls conducted in order to verify the correct application of the conditions relating to the origin of the profits to which the reduction in CIT applies and to the creation or maintenance of jobs in the ARM

77The applicants criticise the Commission, in essence, for finding, in the contested decision, that the controls conducted by the tax authorities were unsuitable for verifying the correct application of the conditions laid down in Regime III relating to the origin of the profits to which the reduction in CIT applied and to the creation or maintenance of jobs in the ARM. That unsuitability is, according to the Commission, a direct consequence of the fact, which the applicants dispute, that the Portuguese authorities interpreted and applied those conditions in breach of the 2007 and 2013 decisions, the 2007 guidelines and Article 107(3)(a) TFEU.

78In that regard, it is sufficient to note that, in paragraphs 60 and 76 above, the Court has found that the Commission’s criticisms of the interpretation and implementation by the Portuguese authorities of the two conditions referred to in paragraph 77 above were justified.

79Consequently, the Commission did not err in law when it found, in recital 178 of the contested decision, that the tax controls conducted by the Portuguese authorities on the Regime III beneficiaries and the data gathered in the context of those controls were not such as to enable effective monitoring of compliance with the Regime III conditions relating to the origin of the profits to which the reduction in CIT applied and to the creation or maintenance of jobs in the ARM, since those authorities were interpreting or applying those conditions for accessing Regime III in breach of the 2007 and 2013 decisions.

80In the light of all the foregoing, the Commission correctly found that Regime III, as implemented, failed to comply with a number of the conditions stipulated by the 2007 and 2013 decisions.

81Since that scheme was implemented in breach of the 2007 and 2013 decisions, in such a way that it was substantially altered compared with the scheme authorised by those decisions, the Commission was also right to find, in recital 180 of the contested decision, that there was unlawful new aid (see, to that effect, judgment of 25 October 2017, Commission v Italy, C‑467/15 P, EU:C:2017:799, paragraph 48).

82It follows that the first plea in law must be rejected as unfounded.

The second plea in law, alleging that the Commission erred in law in so far as the examination of the compatibility of Regime III, as implemented, was not carried out directly and solely on the basis of Article 107(3)(a) TFEU; is based on a misinterpretation of the 2007 guidelines which conflicts with Article 107(3)(a) TFEU; and infringes the principles of free movement of citizens and of workers, freedom of establishment and freedom to provide services

83By their second plea, the applicants criticise the Commission for examining the compatibility of the aid scheme at issue, in the contested decision, not directly and solely in the light of Article 107(3)(a) TFEU but having regard, in its analysis, to the requirements and conditions introduced by the 2007 guidelines. Furthermore, the applicants claim that recitals 191 to 198 of the contested decision, in which the Commission found Regime III, as implemented, to be incompatible, are based on a misreading of the 2007 guidelines and moreover infringe the TFEU, in particular Article 107(3)(a) thereof, under which the compatibility of regional aid to promote the development of the outermost regions is subject only to the requirement that that aid must be intended to promote the development of those regions, in view of their structural, economic and social situation, with no requirement that the aid must be necessary in order to compensate for the disadvantages intrinsic to those regions.

84The Commission disputes those arguments.

85It should be recalled that it is clear from settled case-law that, in the context of the assessment of the compatibility of aid measures with the internal market under Article 107(3) TFEU, the Commission enjoys wide discretion, the exercise of which involves complex economic and social assessments (see, to that effect, judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraphs 79 and 80 and the case-law cited).

86In the exercise of that discretion, the Commission may adopt guidelines in order to establish the criteria on the basis of which it proposes to assess the compatibility, with the internal market, of aid measures envisaged by the Member States (see judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 81 and the case-law cited).

87In adopting such guidelines and announcing, through their publication, that they will apply to the cases to which they relate, the Commission imposes a limit on the exercise of that discretion and cannot, as a general rule, depart from those guidelines, at the risk of being found to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 82 and the case-law cited).

88Admittedly, the Commission cannot, by adopting guidelines, waive the exercise of the discretion that Article 107(3) TFEU confers on it. Therefore, the adoption of the 2007 guidelines does not relieve the Commission of its obligation to examine the specific exceptional circumstances relied on by the Member State, in a particular case, for the purpose of requesting the direct application of Article 107(3) TFEU (see, by analogy, judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 83 and the case-law cited).

89In the present case, as was found in recital 190 of the contested decision, the Portuguese Republic did not invoke any exceptional circumstances such as to justify applying Article 107(3) TFEU directly in order to determine whether Regime III, as implemented, was compatible. Moreover, it is common ground that Regime III, as regional operating aid, falls within the scope of the 2007 guidelines, with the effect that, in accordance with the case-law cited in paragraph 87 above, the Commission was obliged to follow those guidelines in the context of assessing the compatibility of Regime III, as implemented.

90The Commission therefore did not err in law when, in the contested decision, it examined Regime III, as implemented, in the light of the 2007 guidelines rather than directly and solely on the basis of Article 107(3) TFEU, although it did in fact examine it in the latter way in recitals 188 to 198 of the contested decision.

91Furthermore, it does not appear that, in the context of the examination of the compatibility of Regime III, as implemented, in recitals 181 to 207 of the contested decision, the Commission misconstrued the EU rules on regional State aid, in particular the 2007 guidelines or Article 107(3)(a) TFEU.

92As regards the 2007 guidelines, contrary to the applicants’ claims and as already pointed out in paragraph 42 above, in order for regional operating aid in the outermost regions to be compatible, not only must the aid in question be intended to promote the development of those regions, but its level must also be proportionate to the handicaps it seeks to alleviate.

93As recalled in paragraph 43 above, the raison d’être of regional operating aid for outermost regions is to compensate for the additional costs that undertakings incur in these regions as a result of the handicaps to which those regions are subject.

94The Commission correctly noted, in recitals 184 to 186 of the contested decision, that the application of Regime III, as implemented, did not comply with the conditions laid down in paragraphs 76 and 80 of the 2007 guidelines, the lawfulness of which the applicants have not questioned.

95That conclusion cannot be called into question by the applicants’ argument that under Article 107(3)(a) TFEU the compatibility of regional aid for outermost regions is subject only to the condition that that aid must be intended to promote the development of those regions, with no requirement that the aid must be necessary in order to compensate for the disadvantages intrinsic to those regions.

96Although Article 107(3)(a) TFEU admittedly does not state expressly that aid for outermost regions must be necessary in order to compensate for the disadvantages intrinsic to those regions, the fact remains that a finding that State aid – in particular aid granted under Article 107(3)(a) TFEU – is compatible with the internal market inherently presupposes that the aid complies, inter alia, with the general requirement that it must be necessary (see, to that effect, judgments of 17 September 1980, Philip Morris Holland v Commission, 730/79, EU:C:1980:209, paragraph 17; of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 78; and of 12 July 2018, Austria v Commission, T‑356/15, EU:T:2018:439, paragraph 370).

97The Commission correctly found, in recitals 191 to 198 of the contested decision, that Regime III, as implemented, was not applied in such a way as to combat the structural difficulties that undertakings might actually have to address in the context of their activity in Madeira, and, for that reason, was neither appropriate nor proportionate for the purposes of the objective of common interest consisting in the regional development of that region.

98As regards the applicants’ arguments alleging infringement of the principles of free movement of citizens and of workers, freedom of establishment and freedom to provide services, it should be noted that those arguments are seeking, in essence, to question the finding, in recital 198 of the contested decision, made by the Commission on the basis of Article 107(3)(a) TFEU, that Regime III, as implemented, is incompatible with the internal market, on the ground that that finding has the effect of making it more difficult or more costly for undertakings that have benefited from that scheme or their employees to exercise those freedoms.

99In that regard, according to settled case-law, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (see judgment of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 71 and the case-law cited).

100However, that case-law means only that, when the Commission intends to declare aid to be compatible with the internal market, it must satisfy itself that the declaration of compatibility in question, which authorises the Member State to pay the aid concerned, will not entail an infringement of other provisions of EU law, in particular of the principles of free movement.

101By contrast, that case-law cannot, as the applicants are, in essence, suggesting, require that the Commission, where it intends to declare aid to be incompatible and therefore to prevent the Member State concerned from paying it, declare that aid to be compatible and therefore authorise its payment, on the ground that any incompatibility decision would have restrictive effects on the undertakings benefiting from that aid, whether by preventing its payment or by requiring its recovery.

102Were that not so, the prohibition on incompatible State aid would be frustrated by the principles of free movement of citizens and of workers, freedom of establishment and freedom to provide services, even though the TFEU rules on competition, in particular those on State aid, are fundamental in nature and are the expression of one of the essential tasks with which the European Union is entrusted (see, to that effect, judgment of 17 November 2011, Commission v Italy, C‑496/09, EU:C:2011:740, paragraph 60).

103Accordingly, the applicants cannot effectively invoke the principles of free movement of citizens and of workers, freedom of establishment and freedom to provide services against the contested decision in so far as it finds, on the basis of Article 107(3)(a) TFEU, that Regime III, as implemented, is incompatible, and orders recovery thereunder.

104In any event, even assuming that those principles – including the principles of free movement of citizens and of workers – can, in the present case, be relied upon by the applicants, and that the contested decision has a restrictive effect on the freedoms they invoke, it is clear that that restrictive effect is inherent in the declaration of incompatibility relating to Regime III, as implemented, and in the recovery order, contained in the contested decision.

105Moreover, those restrictive effects are justified by a legitimate objective and are proportionate to that objective, as is apparent from paragraph 97 above. Furthermore, neither the finding that Regime III, as implemented, is incompatible with the internal market nor the recovery of the aid unlawfully paid under that scheme prevent companies registered in the MFZ from being established or from providing services outside the ARM, or even from recruiting workers who reside or perform their activity outside that region. They are intended purely to ensure that profits from activities effectively and materially performed outside the ARM cannot be taken into account in the taxable base to which the tax measure at issue applies.

106In addition, as regards the alternative aid scheme proposed by the applicants, based on ‘the gradation of the proportionality of the amount of the aid in cases where the revenue-generating activity is carried on in a different geographical area’, it should be noted that, according to the case-law, the Commission is not required to make a decision in the abstract on every alternative measure conceivable, since, although the Member State concerned must set out in detail the reasons for adopting the aid scheme at issue, in particular in relation to the eligibility criteria used, it is not required to prove, positively, that no other conceivable measure, which by definition would be hypothetical, could better achieve the intended objective. If that Member State is not under any such obligation, the applicants are not entitled to ask the Court to require the Commission to take the place of the national authorities in that task of normative prospecting in order to examine every alternative measure possible (see, to that effect, judgment of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 94 and the case-law cited).

107In the light of the foregoing, the second plea in law must therefore be rejected as unfounded.

The third and fourth pleas in law, alleging that the recovery order in Article 4(1) of the contested decision is unlawful

108By their third and fourth pleas, raised in the alternative and which it is appropriate to examine together, the applicants dispute the lawfulness of the recovery order in Article 4(1) of the contested decision.

109The applicants’ arguments are divided, in essence, into three parts, alleging that the recovery order, first, infringes the principle of the protection of legitimate expectations; second, contravenes the principle of legal certainty; and, third, bases the amount of aid to be reimbursed on an inappropriate method of calculation.

The first part, alleging infringement of the principle of the protection of legitimate expectations

110By the first part of the third and fourth pleas, the applicants claim that the beneficiaries of Regime III, as implemented, had no reason to believe that the reduction in CIT provided for by that scheme was subject to a restrictive interpretation of the conditions relating, first, to the origin of the profits to which the reduction in CIT applied and, second, to the creation or maintenance of jobs in the ARM, since both those conditions were initially introduced in similar terms in the 2002 decision, without any indication that they had to be given a geographically restricted interpretation. In addition, the Portuguese authorities have not, since the introduction of those conditions, in any way changed the interpretation of their scope. The fact that the Commission did not find it necessary to specify the meaning of those conditions when, on two occasions, it approved Regime III was such as to create a legitimate expectation on the part of the beneficiaries that the Commission did not regard the implementation of Regime III by the Portuguese authorities as constituting new State aid.

111The Commission disputes those arguments.

112As regards the general principle of the protection of legitimate expectations, it should be noted that the right to rely on that principle presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (see judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 97 and the case-law cited).

113In addition, in the field of State aid, it is settled case-law that, in view of the mandatory nature of the supervision of that type of aid by the Commission pursuant to Article 108 TFEU, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article, and furthermore, an economic operator exercising due care should normally be able to determine whether that procedure has been followed (see judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 98 and the case-law cited).

114In the present case, the applicants have not shown that, as regards the aid paid in breach of the 2007 and 2013 decisions, which, accordingly, was paid in breach of Article 108(3) TFEU, the Commission gave them precise, unconditional and consistent assurances, in accordance with the applicable rules, such as to give rise to a legitimate expectation on their part, as required by the case-law.

115When an aid scheme has not been notified to the Commission, the Commission’s alleged failure to act is irrelevant (judgment of 11 November 2004, Demesa and Territorio Histórico de Álava v Commission, C‑183/02 P and C‑187/02 P, EU:C:2004:701, paragraph 52; see also, to that effect, order of 7 December 2017, Aughinish Alumina v Commission, C‑373/16 P, not published, EU:C:2017:953, paragraph 54). Accordingly, in the absence of prior notification to the Commission of Regime III, as implemented, the applicants cannot effectively rely, in support of their complaint alleging infringement of the principle of the protection of legitimate expectations, on any failure to act on the part of the Commission.

116Also irrelevant is the fact that Regime III, as implemented, was approved on two occasions by the Commission, since that scheme was implemented in a manner which differs substantially from that provided for in the planned aid scheme notified by the Portuguese Republic.

117As regards the applicants’ argument that it was impossible to infer that the reduction in CIT provided for by that scheme was subject to a restrictive interpretation of the conditions relating, first, to the origin of the profits to which the reduction in CIT applied and, second, to the creation or maintenance of jobs in the ARM, both introduced by Regime II, it is necessary to reiterate the finding made in paragraph 47 above, that not only the wording of the 2007 and 2013 decisions and the context of which they form part but also the objectives pursued by the rules applicable to regional aid leave no room for doubt as to the interpretation to be given to the condition relating to the origin of the profits to which the reduction in CIT applied.

118Similarly, as regards the condition relating to the creation or maintenance of jobs in the ARM, it is clear from the 2002, 2007 and 2013 decisions that access to the tax benefits provided for by Regime II, of which Regime III is an extension, was limited to companies which created a genuinely new activity and satisfied specific eligibility requirements, based on the number of new permanent jobs created (in the first six months of activity) by those companies (see Section II of the 2002 decision). Accordingly, the ceiling on the taxable base subject to the tax benefit in respect of CIT depended on the number of jobs created by the beneficiary (see Section II of the 2002 decision; recitals 18, 19 and 60 of the 2007 decision; and recitals 10 and 11 of the 2013 decision). Any other interpretation would have the effect of removing the link between the intensity of the support for undertakings provided for by Regime III and those undertakings’ contribution to the creation of genuinely new activities in the ARM, even though that objective is one of the conditions for accessing that scheme and even though the proportionality of that scheme was assessed by the Commission in the light of that condition.

119In the light of the foregoing, no infringement of the principle of the protection of legitimate expectations can be found to have occurred and, therefore, the first part of the third and fourth pleas in law must be rejected.

The second part, alleging infringement of the principle of legal certainty

120Under the second part of the third and fourth pleas in law, the applicants dwell on the Commission’s lengthy lack of diligence and inaction in monitoring implementation of the MFZ scheme, in view of the fact that the Commission decided to initiate the monitoring procedure required under Article 108(1) TFEU only more than 8 years after approval of Regime III and more than 2 years after expiry of its initial duration, and that it informed the Portuguese authorities of its intention to commence the formal investigation procedure only 11 years after approval of that scheme and more than 5 years after expiry of its initial duration.

121The Commission disputes those arguments.

122As regards the principle of legal certainty, which differs from the principle of the protection of legitimate expectations (see, to that effect, judgment of 2 February 2023, Spain and Others v Commission, C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 83), it should be noted that, in relation to State aid, arguments seeking to defeat the obligation to recover State aid on the ground of an infringement of the principle of legal certainty are only upheld in very exceptional circumstances (see, to that effect, judgments of 22 April 2008, Commission v Salzgitter, C‑408/04 P, EU:C:2008:236, paragraph 106, and of 21 September 2022, Portugal v Commission (Madeira Free Zone), T‑95/21, EU:T:2022:567, paragraph 204).

123In that regard, it is clear from the case-law that a series of factors must be examined in order to ascertain whether the principle of legal certainty has been infringed, including the lack of clarity of the applicable legal regime (see, to that effect, judgment of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraph 77) or lengthy inaction by the Commission without valid justification (see, to that effect, judgments of 24 November 1987, RSV v Commission, 223/85, EU:C:1987:502, paragraphs 14 and 15, and of 22 April 2008, Commission v Salzgitter, C‑408/04 P, EU:C:2008:236, paragraphs 106 and 107).

124In the present case, the applicants are not relying, in support of the present part of the third and fourth pleas, on any lack of clarity of the applicable legal regime.

125As regards the claim that there were lengthy periods of inaction by the Commission such that the undertakings concerned could rely on the principle of legal certainty, it should be noted that that institution is required to act within a reasonable time in procedures for examining State aid and that it is not allowed to persist in refraining from taking action during the preliminary examination phase. Moreover, the reasonableness of the period taken up by proceedings is to be appraised in the light of the circumstances specific to each case, such as its complexity and the conduct of the parties (judgment of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraphs 81 and 82).

126However, first, as regards the period between the 2002, 2007 and 2013 decisions, on the one hand, and the commencement, on 12 March 2015, of the Regime III monitoring exercise, or even the decision to initiate the formal procedure, served on the Portuguese Republic on 6 July 2018 and published in the Official Journal of the European Union on 15 March 2019, on the other, that period cannot be found to be unreasonable.

127First of all, under Article 13(2) of Regulation No 659/1999 and Article 15(2) of Regulation 2015/1589, the Commission was not bound by specific time limits, such as those laid down in Chapter II of those regulations, on the procedure regarding notified aid (see, to that effect, order of 20 January 2021, KC v Commission, T‑580/20, not published, EU:T:2021:14, paragraph 26).

128Next, as regards the monitoring exercises relating to authorised aid or aid schemes, as in the present case, it cannot be found that the Commission was required to exercise particular diligence, since the principle of sincere cooperation, set out in Article 4(3) TEU, requires the Member States to take all the measures necessary to guarantee the application and effectiveness of EU law.

129In the field of State aid, that means, in particular, that those States must ensure that they do not implement aid or aid schemes in breach of prior authorisation decisions, especially where, as in the present case, the Commission and the Member State concerned initially have a shared understanding of the conditions under which that aid or those aid schemes will be implemented, as observed in paragraphs 38 and 39 above.

130Finally, in the light of the description of the procedure prior to the decision to initiate the formal procedure, given in recitals 1 and 2 of the contested decision, no lengthy inaction by the Commission without valid justification can be identified in the present case.

131Second, as regards the 29-month duration of the formal investigation procedure, that period likewise cannot be regarded as being unreasonable, in the light of the fact that, as is apparent from recitals 3 to 9 and 96 of the contested decision, it was necessary for the Commission to deal with the request from the Portuguese authorities relating to the confidentiality of the decision initiating that procedure; to request those authorities a number of times to provide missing information; and to deal with the comments of the very large number of interested parties that took part in the procedure.

132In those respects, the procedure that gave rise to the contested decision differs markedly from that at issue in the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), on which the applicants cannot therefore validly rely.

133Even considered together, the periods both prior and subsequent to the decision to initiate the formal procedure cannot be regarded as being unreasonable since, by its publication in the Official Journal of the European Union, the applicants – in common with all the undertakings that benefited from Regime III, as implemented – were duly placed in a position to apprise themselves, by 15 March 2019 at the latest, of the decision to initiate the formal procedure, and of the risks of recovery to which they were exposed.

134Accordingly, no infringement of the principle of legal certainty can be found to have occurred. Consequently, the second part of the third and fourth pleas in law must be rejected.

The third part, alleging that a manifestly inappropriate method was used to calculate the amount of the aid to be recovered

135By the third part of their third and fourth pleas in law, the applicants claim that the amount of the aid to be repaid is based on a manifestly inappropriate method of calculation. The applicants accordingly submit that the method whereby the number of jobs created or maintained is calculated in ALU cannot be applied to determine the amounts of aid to be recovered since it is not a valid method for determining effective job creation as it is not derived from any rules forming part of EU law or from any rule established in Portuguese national legislation.

136The Commission disputes those arguments.

137In that regard, it must be noted that it is apparent, in essence, from recitals 168 to 171 of the contested decision that the condition that jobs must be created or maintained in the ARM is not only a condition for accessing Regime III but also a parameter of the calculation of the aid amount, which must be based on an objective, verifiable and proven method. Furthermore, the proportionality of Regime III, to the additional costs for which that that scheme was intended to compensate, was assessed in the light of that condition.

138Therefore, although the 2007 and 2013 decisions do not require the application of a specific method in order to calculate the number of jobs created or maintained in the ARM by each beneficiary, the fact remains that those decisions required the use of an objective method capable of verifying the reality and permanence of the jobs declared by the Regime III beneficiaries.

139Since the method used by the Portuguese authorities (see paragraphs 63 to 65 above) manifestly did not meet that requirement, and since those authorities have not proposed another objective method serving to verify the reality and permanence of the jobs declared by the beneficiaries, for the sole purpose of the recovery of the aid paid under Regime III, as implemented, the Commission, in recital 216 of the contested decision, required that the amount of the aid to be recovered should be calculated in accordance with the ALU method.

140In those circumstances, the fact of requiring the use of such a method, which pertains only to the Commission’s obligation to provide the Member State concerned with the information enabling it to determine itself, without excessive difficulty, the recoverable amount of the aid, cannot be found to be inappropriate.

141Consequently, the third part of the third and fourth pleas must be rejected as unfounded.

142In the light of all the foregoing, the third and fourth pleas in law must be rejected, and, therefore, the actions must be dismissed in their entirety.

Costs

143Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

144Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the forms of order sought by the Commission.

Operative part

On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:

1.Joins Cases T‑713/22 and T‑720/22 for the purposes of the judgment;

2.Dismisses the actions;

3.Orders Portumo – Madeira – Montagem e Manutenção de Tubaria, SA (Zona Franca da Madeira), Ponticelli – Consultadoria Técnica, SA (Zona Franca da Madeira), Ponticelli Angoil – Serviços Para a Indústria Petrolífera, SA (Zona Franca da Madeira) and Nova Ship Invest, Unipessoal, Lda (Zona Franca da Madeira) to pay the costs.

Delivered in open court in Luxembourg on 6 November 2024.

Portumo - Madeira - Montagem e Manutenção de Tubaria, SA (Zona Franca da Madeira) and Others v European Commission (T-713/22)

Judgment

Background to the dispute

Forms of order sought

Law

Subject matter of the first plea in law

Merits of the first plea in law

–The condition relating to the origin of the profits to which the reduction in CIT applies

–The condition relating to the creation or maintenance of jobs in the ARM

–The effectiveness of the tax controls conducted in order to verify the correct application of the conditions relating to the origin of the profits to which the reduction in CIT applies and to the creation or maintenance of jobs in the ARM

The third and fourth pleas in law, alleging that the recovery order in Article 4(1) of the contested decision is unlawful

The first part, alleging infringement of the principle of the protection of legitimate expectations

The second part, alleging infringement of the principle of legal certainty

The third part, alleging that a manifestly inappropriate method was used to calculate the amount of the aid to be recovered

Costs

Operative part

Connections

History · 1 version

Judgment

Background to the dispute

Forms of order sought

Law

Subject matter of the first plea in law

Merits of the first plea in law

–The condition relating to the origin of the profits to which the reduction in CIT applies

–The condition relating to the creation or maintenance of jobs in the ARM

–The effectiveness of the tax controls conducted in order to verify the correct application of the conditions relating to the origin of the profits to which the reduction in CIT applies and to the creation or maintenance of jobs in the ARM

The third and fourth pleas in law, alleging that the recovery order in Article 4(1) of the contested decision is unlawful

The first part, alleging infringement of the principle of the protection of legitimate expectations

The second part, alleging infringement of the principle of legal certainty

The third part, alleging that a manifestly inappropriate method was used to calculate the amount of the aid to be recovered

Costs

Operative part

Key facts