Iberpotash v Commission (State aid - Mining sector - Judgment) [2020] EUECJ T-257/18 (16 January 2020)

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(State aid — Mining sector — Measure consisting (i) in the reduction of financial guarantees for the restoration of mining sites and (ii) in State investment for the restoration of mining sites ensuring a higher level of environmental protection — Decision declaring aid partly incompatible with the internal market and ordering its recovery — Concept of ‘aid’ — Advantage — Transfer of State resources — Selective nature — Legitimate expectations — Legal certainty — Calculation of the amount of the aid)

Iberpotash, SA, established in Súria (Spain), represented by N. Niejahr and B. Hoorelbeke, lawyers,

European Commission, represented by G. Luengo and D. Recchia, acting as Agents,

ACTION pursuant to Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2018/118 of 31 August 2017 on State aid SA.35818 (2016/C) (ex 2015/NN) (ex 2012/CP) implemented by Spain for Iberpotash (OJ 2018 L 28, p. 25),

composed of E. Buttigieg, acting as President, B. Berke (Rapporteur) and M.J. Costeira, Judges,

having regard to the written part of the procedure and further to the hearing on 12 July 2019,

1 The applicant, Iberpotash, SA, is a public limited company established under Spanish law which owns and operates two active potash mines in Catalonia (Spain), one in the municipality of Súria and another in the municipalities of Sallent and Balsareny (together, ‘the applicant’s mines’). The applicant is also the owner of the Vilafruns salt waste heap (‘the Vilafruns waste heap’) at which mining activities ceased in 1973.

2 The applicant is a subsidiary of ICL Fertilisers, an Israeli multinational which is the largest producer of fertilisers worldwide. The applicant acquired the mines from the Spanish State on the basis of a sales and purchase agreement concluded on 21 October 1998 with the Sociedad Estatal de Participaciones Industriales (SEPI), a public holding of the Spanish State.

3 On 9 November 2006, the applicant obtained an environmental permit to extract potash at the Súria mining site and the amount of the financial guarantee for that site was set at EUR 773 682.28 (increased to EUR 828 013.24 in 2008). On 28 April 2008, the applicant obtained an environmental permit to extract potash at the Sallent/Balsareny site, for which the amount of the financial guarantee was set at EUR 1 130 128. Those permits constitute individual and specific administrative decisions adopted by the Generalidad de Cataluña (Regional Government of Catalonia, Spain).

4 By a judgment of 11 October 2011, the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia, Spain) held that the restoration plan for the Sallent/Balsareny site was incomplete and that, therefore, the amount of the financial guarantee for that plan was too low. That judgment was confirmed on appeal by the Tribunal Supremo (Supreme Court, Spain).

5 The amount of the financial guarantees, which were mentioned in paragraph 3 above, were revised only in 2015, when the Spanish authorities proposed significantly higher levels, amounting to EUR 6 979 471.83 for the Sallent/Balsareny site (effective only after the approval of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) in December 2016) and to EUR 6 160 872.35 for the Súria site.

6 On 17 December 2007, the Ministerio de Medio Ambiente (Ministry of the Environment, Spain) and the Agencia Catalana del Agua (Catalan Water Agency, Spain) signed a convention in which they decided to cover the historic Vilafruns waste heap. Based on that convention, works on the covering of the Vilafruns waste heap started in August 2008 and carried on for 18 months. Those works were financed entirely by the Ministerio de Hacienda (Ministry of Finance, Spain) and the Catalan Water Agency.

7 Mining operators’ environmental obligations in relation to operational mines in the Spanish autonomous community of Catalonia are set out in Ley 12/1981 por la que se establecen normas adicionales de protección de los espacios de especial interés natural afectados por actividades extractivas (Law No 12/1981 establishing additional measures for the protection of natural sites of special interest affected by mining activities), of 24 December 1981 (BOE No 30, of 4 February 1982, p. 2874, ‘Catalan Law 12/1981’) and in Decreto 202/1994 por el que se establecen los criterios para la determinación de las fianzas relativas a los programas de restauración de actividades extractivas (Decree 202/1994 establishing the criteria for determining the guarantees related to the restoration programmes for mining activities), of 14 June 1994 (‘Decree 202/1994’).

8 Decree 202/1994 was replaced by Real Decreto 975/2009 sobre gestión de residuos de las industrias extractivas y de protección y restauración del espacio afectado por actividades de mineras (Royal Decree 975/2009 on waste management in mining and quarrying and protection and rehabilitation of areas affected by mining activities) of 12 June 2009 (BOE No 143, of 13 June 2009, p. 49948, ‘Royal Decree 975/2009’), which transposed Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (OJ 2006 L 102, p. 15), and has applied since 1 May 2014 to mines active before 1 May 2008, like the applicant’s mines.

9 Article 4 of Catalan Law 12/1981 provides that any authorisation application for extractive activities must include a restoration programme. In accordance with Article 5 of Catalan Law No 12/1981, the restoration programme must define measures to prevent and compensate for expected harmful environmental consequences of planned extractive activities. It must include the restoration measures to be executed at the end of different phases of the operation and at the end of the extractive activity.

10 Article 8(1), (1a) and (2) of Catalan Law 12/1981 provides that, in order to secure the discharge of the restoration programme, the mining operator must provide a financial guarantee. The amount of the guarantee is set depending on the area affected by the restoration or the overall cost of the restoration.

11 Article 9 of Catalan Law 12/1981 provides that the competent authorities may force execution of the restoration programme if the holder of the operation is unable or unwilling to execute it. The costs of forced execution are borne by the mining operator and the competent authorities can impose an administrative penalty on the operator.

12 Article 2 of Decree 202/1994 establishes further criteria to determine the amount of the financial guarantee. All those criteria relate to the costs of the measures and special works included in the restoration programme. For mines not located in natural sites of special interest, like the applicant’s mines, Article 3 of the Decree provides that the amount of the financial guarantee determined on the basis of Article 2 of the same decree is halved.

13 In the case of mines which are no longer operational, Article 121 of Ley 22/1973 de Minas (Law 22/1973 on mines) of 21 July 1973 (BOE No 176, of 24 July 1973, p. 15056; ‘the Spanish Mining Act’) provides that the owner of a non-operational mine must comply with the restoration plans approved by the mining authorities.

14 On 30 November 2012, the European Commission received an anonymous complaint that the Kingdom of Spain had implemented several alleged aid measures for the applicant.

15 On 10 January 2013, the Commission sent an initial request for information. The Kingdom of Spain replied on 8 March 2013. Further requests for information were sent on 14 May 2013, 16 January 2014 and 26 March 2014, to which the Kingdom of Spain replied by letters of 13 June 2013, 14 February 2014 and 15 April 2014.

16 On 30 January 2015, the Commission sent a preliminary assessment letter to the complainant, who, on 5 March 2015 and 21 April 2015, submitted further information. In addition, a meeting was held on 9 March 2015 with the complainant, who submitted other additional information on 4 June 2015.

17 On 9 June 2015, the Commission sent to the Kingdom of Spain the complainant’s final reply to the preliminary assessment letter, together with a request for additional information. The Kingdom of Spain replied on 8 July 2015. At the request of the Kingdom of Spain, a non-confidential version of the preliminary assessment letter was sent to it on 31 July 2015.

18 On 26 January 2016, the Commission initiated a formal procedure to examine two alleged aid measures, namely the Kingdom of Spain’s grant to the applicant, first, of an advantage in the form of lower guarantee fees and, second, of investment aid to cover the Vilafruns waste heap. That decision was published in the Official Journal of the European Union (OJ 2016 C 142, p. 18). The Commission asked the Spanish authorities to provide their comments and additional information, which they submitted on 28 November 2016.

19 The Commission received comments from interested parties and from the applicant, and forwarded them to the Kingdom of Spain, which submitted its comments on 27 July 2016 and 6 April 2017.

20 On 31 August 2017, the Commission adopted Decision (EU) 2018/118 on State aid SA.35818 (2016/C) (ex 2015/NN) (ex 2012/CP) implemented by Spain for Iberpotash (OJ 2018 L 28, p. 25; ‘the contested decision’), declaring the two aid measures at issue incompatible with the internal market (Article 1(1) and (3)) and ordering their recovery (Articles 2 and 3).

1. The State aid in favour of Iberpotash in the form of unduly low guarantee fees resulting from the unduly low level of the guarantees for the period 2006-2016 amounting to EUR 1 864 622, unlawfully granted by Spain, in breach of Article 108(3) of the Treaty on the Functioning of the European Union, is incompatible with the internal market.

2. The State aid for covering Vilafruns waste heap amounting to EUR 3 902 461.30 unlawfully granted by Spain, in breach of Article 108(3) of the Treaty on the Functioning of the European Union, in favour of Iberpotash is compatible with the internal market within the meaning of Article 107(3)(c) [of the Treaty on the Functioning of the European Union].

3. The remaining part of State aid for covering Vilafruns waste heap amounting to EUR 3 985 109.70 unlawfully granted by Spain, in breach of Article 108(3) of the Treaty on the Functioning of the European Union, in favour of Iberpotash is incompatible with the internal market.

1. Spain shall recover the aid referred to in Article 1(1) and (3) from the beneficiary.

2. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiaries to the date of their effective recovery.

3. The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 and with Commission Regulation (EC) No 271/2008 amending Regulation (EC) No 794/2004.

4. Spain shall cancel all outstanding payments of the aid referred to in Article 1(1) and (3) with effect from the date of adoption of this decision.

1. Recovery of the aid referred to in Article 1(1) and (3) shall be immediate and effective.

2. Spain shall ensure that this decision is implemented within four months following the date of notification of this Decision.

23 First, State aid in the form of lower bank fees for the reduced level of the guarantees for the period 2006-2016 and amounting to EUR 1 864 622 (‘Measure 1’).

24 Second, a measure concerning the investment to cover the Vilafruns waste heap (‘Measure 4’), which constitutes (i) for the part equivalent to an amount of EUR 3 902 461.30, a measure compatible with the internal market within the meaning of Article 107(3)(c) TFEU, since it is in accordance with the Community guidelines on State aid for environmental protection (2008/C 82/01), (OJ 2008 C 82, p. 1; ‘the 2008 Guidelines’) and (ii) aid incompatible with the internal market, in particular for the part exceeding the maximum intensity for investment aid enabling the level of environmental protection to be increased, which amounts to EUR 3 985 109.70.

25 In its assessment of the existence of State aid, as regards ‘Measure 1’, the Commission states, in particular with respect to the existence of an advantage, in recital 54 of the contested decision, that it is first of all necessary to assess whether the levels of the financial guarantees as set by the Spanish authorities were lower than required by the applicable rules, which it analyses in recitals 56 to 59 of the contested decision.

26 In recital 60 of the contested decision, the Commission observes that the amount of the financial guarantees was set by the Regional Government of Catalonia, in two individual and specific decisions adopted in relation to the applicant: the first permit, issued on 9 November 2006, allowing the applicant to carry out the activities of operating the Súria mining site, set the amount of the financial guarantee at EUR 773 682.28 (increased to EUR 828 013.24 in 2008); the second permit, issued on 28 April 2008, for the Sallent/Balsareny mining site, set the amount of the financial guarantee at EUR 1 130 128. Those amounts were revised in 2015, when the Spanish authorities proposed significantly higher levels, amounting to EUR 6 979 471.83 for the Sallent/Balsareny site (effective only after the approval of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) in December 2016) and to EUR 6 160 872.35 for the Súria site (effective as of May 2015).

27 With regard to the level of the financial guarantees provided by the applicant, the Commission states as follows:

‘(61) [I]t is first for the competent environmental authorities to determine and approve the amounts of the financial guarantees under national or regional rules applicable to the case at hand. Even though the Commission is responsible for safeguarding the correct transposition and implementation of the Extractive Waste Directive [2006/21], which is applicable to [the applicant’s] financial guarantees as of 1 May 2014, this Directive leaves a significant discretion to the Member States in determining the exact amount of the guarantees. For this reason, the Commission has not engaged in its own evaluation of the correct levels of the financial guarantees according to the Extractive Waste Directive but limits its assessment to evaluating the existing evidence of the insufficiency of the financial guarantees. In fact, there is a number of pieces of evidence suggesting that the amount of the financial guarantees as set by the public authorities in 2006 and 2008 was actually lower than required under the applicable legislation.

(62) Most importantly, the [High] Court of Justice of Catalonia (Tribunal Superior de Justicia de Cataluña) ruled on 11 October 2011 that the amount of the financial guarantee for [the applicant’s] Cogulló waste heap at its site of Balsareny/Sallent amounting to EUR 585 153 was lower than required. The judgment rules that the amount of the guarantee does not respect the legal and regulatory parameters set by the national legislation, referring in particular to Article 8(2) of [Catalan] Law 12/1981 and Decree 202/1994 … This judgment was fully confirmed on appeal by the judgment of the Supreme Court (Tribunal Supremo) of 9 July 2014. Finally, as noted by the Spanish authorities, by its [judgment] of 14 December 2016, the [High] Court of Justice of Catalonia confirmed that a newly proposed amount of EUR 6 979 471.83 for the whole site at Balsareny/Sallent was adequate.

(63) In view of the national judgment of the [High] Court of Justice of Catalonia of 11 October 2011 authoritatively interpreting the relevant national rules, the Commission considers as demonstrated that the original amount of the financial guarantee for [the applicant’s] site at Balsareny/Sallent set in 2006 at the level of EUR 1 130 128 … was significantly insufficient …

(64) Even though there is no similar court ruling with respect to the guarantee for the site in Súria, there is convincing evidence that the finding of clear insufficiency of the level of guarantee would have been equally probable in case of any court action. The amount of the original guarantee of EUR 773 682.28 (increased to EUR 828 013.24 in 2008) reflects proportionally the fact that the site at Súria is smaller than at Balsareny/Sallent as regards the mass of the waste accumulated and the total area of the waste heaps. Further, the guarantee for Súria has been significantly increased to EUR 6 160 872.35 at the same time as for Balsareny/Sallent (i.e. only after the order of the court and its confirmation on appeal) and by even higher proportion (more than seven times higher). Therefore, in the absence of any other factors explaining the difference of the amounts of the guarantees for Súria on the one hand and Balsareny/Sallent on the other hand, the amount of the guarantee for Súria can also be considered as insufficient.

(66) In addition to the authoritative finding by a national court, the investigation has revealed several other pieces of evidence corroborating the finding that the original level of the financial guarantees was unduly low.

(67) [O]fficial transcripts from the hearing before the Environmental Committee of the Catalan Parliament of 2 October 2013 [contained the] explicit [statement] of the Director-General for Environment at the Generalitat de Catalunya according to which the guarantees were clearly insufficient … Even though the transcripts of a political discussion in parliament do not contain any relevant justification for the amount advanced, and thus need to be treated cautiously, the orders of magnitude and difference with the actual amount do confirm the conclusions reached by experts in the field, who considered the amount of the guarantees set in 2006 and 2008 as clearly insufficient.

(68) Second, the Complainant submitted a study of August 2012 that it commissioned from environmental experts (‘ERF Study’). The study is an expert survey analysing and compiling extensive existing information (legal, academic or resulting from market investigation) on the relevant topic. The ERF Study analysed the existing situation as regards the environmental impact of [the applicant’s] mining sites and forecasted future developments as regards the total amount of material accumulated on the waste heaps. It concludes that the environmental impacts of the waste heaps were significant and expected to further grow in the future.

(72) On this basis, the ERF Study considers that the amount of the financial guarantee based on the new legislative rules of the Royal Decree 975/2009 should definitely not be lower than the basic costs of restoration in 2012 amounting to EUR 71 million for both sites and its appropriate amount, taking into account the total costs in the future, should rather be around EUR 100 million.

(75) [As regards the applicant’s criticism that the ERF Study cannot serve as a basis for calculating the amount of the guarantees, t]he Commission acknowledges that the study does not follow the relevant provisions of Decree 202/1994 and focuses rather on the conditions of Royal Decree 975/2009 transposing … Extractive Waste Directive [2006/21] focusing on the expected costs of restoration. However, its results indicating the estimated restoration costs for [the applicant’s] individual … sites are based on a sound methodology and reasonable assumptions as described above in recitals 68-73 and are thus indeed relevant for the calculation of the guarantees also under Decree 202/1994. This is demonstrated in particular by Article 2.4(h) of Decree 202/1994, which refers to the costs of any other specific restoration measures that may be necessary and thus not limiting the calculation to the measures individually enumerated in the previous points of Article 2.’

28 On the basis of those factors, the Commission reached the conclusion, in recitals 82 and 83 of the contested decision, that the evidence collected and the expert reports submitted corroborate the finding of the national court that the original amounts of the financial guarantees were clearly insufficient to ensure proper restoration and that, therefore, those amounts were indeed lower than the level normally required under the applicable national legislation. Therefore, the applicant has been granted an economic advantage in the form of lower banking fees paid annually for the financial guarantee. The applicant received a selective advantage in the form of lower bank fees for the reduced guarantees as compared to other operators in a similar position.

29 As regards the criterion relating to the use of State resources, the Commission observes as follows:

‘(88) The Commission notes that the guarantees at issue in this case are not examined under State aid rules as to the amount of fee possibly foregone in light of the risk or exposure incurred by the guarantor (i.e. a private bank, not the State) but as to the risk for the State in case the guaranteed amount is lower than the actual costs of the environmental damage and in case the guaranteed company does not or cannot pay the full restoration costs.

(90) The financial guarantee by [the applicant] is provided in the form of a bank guarantee which is not [free for] the State. It can be used only for measures strictly defined by the law, in particular for financing the removal of waste, restoration of the site and other environmental measures in case [the applicant] does not fulfil its environmental obligations. The State does not acquire any interest on the funds of the guarantee or any other financial advantage which would be reduced in case of a lower amount of the guarantee. Further, the State has so far not been in a position where it would need to make any use of the guarantee for any of the above purposes. However, even if the reduced amount of the guarantee has so far not led to any actual effect on State resources, this fact alone does not exclude the existence of a potential effect on State resources due to increased risk for the State to be obliged to spend its resources in the future.

(91) Indeed, the creation of a concrete risk of imposing an additional burden on the State in the future is sufficient for the purposes of fulfilling the notion of State aid, pursuant to Article 107(1) of the Treaty. The Court of Justice [of the European Union] has also held that the link to and effect on State resources of a State aid measure [need not] be direct for this criterion to be met.

(92) The very purpose of such financial guarantees is to make sure that the mining companies have sufficient resources kept aside to cover future restoration costs whatever their financial situation in the (often rather distant) future might be. It is thus evident that in case the amount of the guarantee is significantly lower than expected restoration costs, there is at the least an increased risk that State resources might be affected in the future. This risk of potential costs to [the] public budget is clearly higher than in case the guaranteed amount would have been correctly set in line with the applicable legislation, taking due account of the expected restoration costs. If these resources are significantly lower than necessary, State resources would ultimately have to cover a greater part of these costs in case [the applicant] is for whatever reason not willing or able to do so. In addition, in case of [the applicant’s] inability to pay the restoration costs in the future, the alleged possibility for the Spanish authorities to seize assets of [the applicant] is unlikely to bring significant additional resources since the only Spanish assets of [the applicant] (and the whole ICL group) are its potash mining facilities. However, once the potash mines are closed the value of these assets is doubtful.

(93) The fact that the State would be obliged to step in on its own account in case [the applicant] is not willing or able to take the necessary restoration measures with respect to its waste heaps is well established in the applicable legislation.

(94) Firstly, pursuant to Article 102 of Law 39/2015, the State may take measures in lieu of the party legally responsible for taking such measures. Spain would have to (i) enjoin [the applicant] to take specifically defined measures; (ii) inform [the applicant] that the administration will otherwise take such measures itself, and at what cost; (iii) implement such measures; and (iv) attempt to recover the cost from [the applicant], which by definition will not be possible if Spain must execute [an] insufficient financial guarantee. While this decision is formally [optional], in the event of [the applicant] defaulting on its obligations to restore its facilities, Spain would have no option other than to pay upfront for such restoration, because Spain would otherwise not comply with its own obligations.

(95) Secondly, as noted in recital 13, Spain may be in breach of its obligations under the Extractive Waste Directive and the Water Framework Directive. Therefore, should [the applicant] abandon its facilities after depleting the mineral resources and not restore such facilities, given the insufficient guarantee, the only way for Spain to meet its obligations under those Directives and eventually avoid daily penalty payments imposed by the Court of Justice [of the European Union] is to pay itself for the removal of the salt tips or an equally effective restoration.

(96) Thirdly, under the provisions of the Spanish Law 27/2006 of 18 July 2006 the Spanish authorities can be compelled to comply with their obligations under the environmental legislation. Any non-governmental organisation that meets the criteria set out in Law 27/2006 may, in the event of an environmental infringement listed at Article 18(1) of Law 27/2006 (including e.g. infringements concerning the obligations in the area of water protection), take action in court to force the administration to comply with its environmental obligations.

(98) Finally, the Spanish authorities themselves indicate that according to Article 9 of [Catalan] Law 12/1981 in case the operator does not comply with its obligations, the [Generalitat de Catalunya] can forcefully execute these measures at the costs of the operator. They indicate that in practice the administration implements the relevant measures that are then financed from the financial guarantee or, in case the guarantee is not sufficient, from the sale of assets of the operator. Therefore, in case the financial guarantee is significantly lower than required, the public administration runs a risk that the assets of the operator are not sufficient to finance the relevant measures it executed. This confirms that … too low [a] financial guarantee increases the risk that the restoration measures taken by the administration will not be sufficiently covered by the assets of the operator (especially in case it does not have any other Spanish activities as in [the applicant’s case]) and would need to be paid from the public resources.

(99) Therefore, a level of guarantees which is significantly lower than necessary as required by law is exposing the State to a concrete risk of additional burden on its resources. The increased risk of additional burden on the State is thus sufficiently concrete to constitute at least a potential impact on State resources due to an excessively low level of the financial guarantee.’

30 As regards the existence of a distortion of competition and an impact on trade between Member States, the Commission considers that:

‘(102) [T]he reduced costs of [the applicant] due to a level of financial guarantees which is lower than required by the relevant legislation are liable to distort competition on the markets where [the applicant] is active — mainly markets for potash and salt. As explained below (see recital 110 [et seq.]), this reduction of costs amounted over the relevant period to around EUR 1.8 million and thus, contrary to the claims of the Spanish authorities, was not negligible.

(103) Further, the fact that [the applicant] is the sole Spanish producer of potash does not exclude a potential distortion of competition since the relevant geographic market is clearly wider than the national Spanish market.

(106) As already indicated above, the markets for potash and salt are clearly cross-border markets with 50% of [the applicant’s] production being exported to other European countries. Therefore, the reduced level of the financial guarantees is liable to affect trade between EU Member States.’

‘(109) Establishing the actual amount of the aid first requires establishing at least an approximate “correct” amount of the financial guarantees under the applicable legislative rules in the relevant period. Then, the aid amount would correspond to the difference between the expected amount of banking fees that [the applicant] would have had to pay to constitute this correctly set guarantee amount, and the actual amount of banking fees that the company paid.

(111) Since, according to the Spanish authorities, the [High] Court of Justice of Catalonia … found in December 2016 the increased amount of EUR 6 979 471.83 for [the] Balsareny/Sallent site to be in line with the applicable legislation, the Commission considers that at present the “correct” amount of the guarantees for Balsareny/Sallent corresponds to this currently applicable amount approved by the Court.

(112) Further, the Commission by analogy (see also recital 64 above) considers that the increased amount [(to EUR 6 160 872.35) of] the guarantee for Súria applicable since 2015 can also be considered as in line with the applicable legislation. Even though there is no authoritative court conclusion with respect to this site, the increased amount of the guarantee for a smaller site [like] Súria is in fact almost comparable to the approved amount for Balsareny/Sallent. This confirms that the amount can be considered as adequate and in line with the applicable legislation.

(123) [T]he total amount of aid granted to [the applicant] in the form of lower bank fees for the reduced level of the guarantees for the whole period 2006-2016 amounts to EUR 1 864 622.’

32 In its assessment of the existence of State aid in respect of Measure 4, the Commission states, in particular with regard to the existence of an advantage, as follows:

‘(125) On 17 December 2007, the Ministry of Environment of Spain and the Generalitat de Catalunya signed a convention by which they agreed to cooperate and share the costs with respect to the project aimed at covering the waste heap of Vilafruns and thus reducing its negative environmental impact … The total investment costs amounted to EUR 7 887 571 and were entirely covered by public authorities as agreed in the 2007 convention.

(131) [The responsibility which the applicant has to manage the mining waste generated by the Vilafruns waste heap] was based on the Spanish Act 6/1993 of 15 July 1993 on management of waste and also on the Royal Law-Decree 1/2001 of 20 July 2001 recasting the Spanish Water Act. The third party claims that the fact that Vilafruns was no longer active when acquired by [the applicant] is irrelevant since any holder of a mining concession must manage any mining waste in its entirety, i.e. including any waste generated prior to the holder’s acquisition of the concession.

(138) The Commission considers that, regardless of the extent of [the applicant’s] obligations with respect to Vilafruns, it is not acceptable that public investment of EUR 7.9 million into a significantly better environmental protection amounting in principle to the restoration of the mining site without any investment costs to [the applicant] indeed did not bring any economic advantage to [the applicant]. The installation of the covering of the waste heap [was] aimed at reducing significantly the pollution caused by leaks from the Vilafruns heap. The alternative measures in the absence of aid would have not provided such good and long-lasting protection and would have exposed [the applicant] to risks of having to bear the consequences of the pollution (as demonstrated by the criminal[-law] judgments of 18 December 2014 and 25 February 2015 related to its other mining sites — see recitals 27 and 94 of the Opening Decision). Therefore, the construction of the facility paid from public resources enabled [the applicant] to better prevent pollution, lower its environmental risks for the future and provide for a long-lasting restoration of the heap (in line with similar restorations of salt waste heaps in France or Germany as explained above in recitals 26 and 32). [The applicant] would have been ultimately obliged to ensure a proper restoration of Vilafruns waste heap.

(139) Finally, the Commission considers that the measure is selective since it [was] specifically aimed at public financing of the covering of Vilafruns waste heap in the ownership of [the applicant].

(148) In light of the above, the Commission comes to the view that Measure 4 constitutes State aid amounting to EUR 7 887 571 and will therefore assess its lawfulness and compatibility with the internal market.’

33 As regards the analysis of the compatibility of the aid, the Commission stated, in recital 152 of the contested decision, that Measure 1 constituted operating aid to the applicant, as the measure had allowed costs from guarantee fees to be lower than those normally applicable during the period between 2006 and 2016, which is incompatible with the internal market since the Commission found no ground in support of the possible compatibility of that aid, which was granted without pursuing any apparent objective of common interest.

34 As regards Measure 4, the Commission by contrast observed, in recitals 156 to 164 of the contested decision, that the covering of Vilafruns waste heap constituted compatible aid, on the basis of Section 3.1.1 of the 2008 Guidelines concerning aid for undertakings which goes beyond Union standards on the level of environmental protection or which increases that level in the absence of Union standards.

35 The Commission considered that the covering of Vilafruns waste heap had enabled the applicant to increase the level of environmental protection resulting from its activities in the absence of Union standards. The Commission moreover, first, calculated the total eligible costs amounting to EUR 7 804 922.60, second, determined the maximum aid intensity allowed for the applicant, as a large undertaking, corresponding to 50% of the eligible costs, and, third, set the balance of the total amount of the incompatible aid at EUR 3 985 109.70.

36 By application lodged at the Court Registry on 24 April 2018, the applicant brought the present action.

38 The applicant lodged the reply on 27 September 2018. The Commission lodged the rejoinder on 12 November 2018.

– in the alternative, annul the contested decision to the extent that it finds Measure 1 to constitute State aid and orders its recovery;

– in the alternative, annul the contested decision in so far as it determines the amount of unlawful but compatible aid and the amount of unlawful aid to be recovered under Measure 4;

41 The applicant puts forward five pleas in law in support of its action. The first alleges infringement of Article 107(1) TFEU in so far as the Commission wrongly concluded that Measure 1 involved a transfer of State resources. The second alleges infringement of Article 107(1) TFEU in so far as the Commission wrongly concluded that Measure 1 conferred an advantage or, in the alternative, in so far as it failed to establish that the initial amounts of the financial guarantees were too low. The third alleges infringement of the principles of the protection of legitimate expectations and legal certainty. The fourth alleges infringement of Article 107(1) TFEU, in that the Commission found that Measure 4 conferred a selective advantage. The fifth plea in law, raised in the alternative, alleges infringement of Article 16(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down the detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) in so far as the Commission did not correctly establish the amount of the aid, if any, arising from Measure 4.

First plea in law: infringement of Article 107(1) TFEU in so far as the Commission wrongly concluded that Measure 1 involved a transfer of State resources

42 The applicant claims that Measure 1 does not satisfy the criterion of a transfer of State resources, since it did not lead to any reduction of the State budget.

43 In the first place, the financial guarantees that the applicant was to provide for the restoration of the mining sites were granted not by the State but by private banks, to which the applicant had to pay premiums should it prove necessary to call upon those guarantees. It follows that the State did not lose revenues because the guarantees were set at a level allegedly lower than that required and that, in the present case, there is not a sufficiently direct link between the advantage granted and the reduction of the State’s budget.

44 In the second place, according to the applicant, there was not a sufficiently concrete economic risk for the State budget. This would have been the case only if the restoration costs had proved to be unrecoverable from the applicant. Such a potential obligation on the State to bear some of the costs and the ensuing potential burden on the State budget are thus too remote and hypothetical. According to the applicant, the principles relating to State guarantees cannot apply in the present case. The Commission’s arguments which refer to those principles are inadmissible, since the Commission did not refer to them in the contested decision and, moreover, the analogy with those principles is flawed. First, in the case of the State guarantees, a transfer of State resources occurs because the State foregoes part of the revenues by agreeing to a lower premium for the guarantee than a private guarantor would charge. In the present case, however, the applicant paid a premium in line with the market. Second, in the context of a State guarantee, the advantage for the beneficiary is clear, since it pays a lower premium for the State guarantee than it would pay for a similar guarantee accorded by a bank and its creditworthiness is increased, and as a result it pays lower interest. In this case, neither of those two conditions has been met. Third, in the case of State guarantees, the State undertakes to pay a third party the guaranteed amount when the beneficiary of the guarantee defaults on its obligation to repay the guaranteed loan, whereas, in the present case, the State did not undertake to pay any amount in the event that the guarantee was insufficient. It follows that the case-law on State guarantees is not applicable in the present case.

45 According to the applicable case-law, such a hypothetical risk of burden on the State budget can be proved only where the State is one of the chief creditors of the undertaking in difficulty and the undertaking is insolvent. In the present case, the applicant can ensure compliance with its obligations, since it is part of a multinational group of undertakings (not only the group in Spain), which has substantial assets, which do not lose their value after the closure of the potash mines, and which has already shown in the past that it has the necessary financial capacity to cover any required restoration measures, irrespective of the level of the guarantees fixed. Since the environmental liability of an undertaking extends to the controlling group’s companies, the risk that the State will bear the applicant’s possible insolvency is not sufficiently concrete. According to the case-law (judgment of 1 December 1998, Ecotrade, C‑200/97, EU:C:1998:579), specific circumstances need to be present that make it more likely than not that State resources will be impaired, and the existence of the slightest or a remote risk cannot be sufficient to conclude that there has been a transfer of State resources.

46 In the third place, the applicant explains that, since the financial guarantees can be called upon only after mining activities have been terminated under both national and EU legislation and since, during operations, the guarantee amount is to be periodically adjusted taking into account the restoration work needed, the amount of those guarantees are not fixed but change over time. A risk for the State budget therefore exists only once the mining operations have ceased. In the present case, since the amount of the financial guarantees was brought back to an adequate level, in 2015 for the Súria site and in 2016 for the Sallent/Balsareny site, before any termination of mining operations, this means that, prior to the contested decision, the Spanish State did not, at any time, face an economic risk. The applicant states, inter alia, in response to the Commission, first, that it has significant assets in Spain other than the potash mines, against which the State could execute the obligation to pay for the obligatory restoration measures, and, second, that Spanish law allows for the enforcement of environmental obligations against the undertaking’s managers and administrators.

47 In the fourth place, the applicant relies on an earlier Commission decision (Commission notice, Sniace; State aid C 68/97 (NN 118/97) Spain, OJ 1998 C 49, p. 2; ‘the Sniace Decision’), in a case which is similar to the present case. In that case, the non-enforcement of environmental obligations was found not to imply a transfer of State resources and therefore not to be State aid.

49 Under Article 107(1) TFEU, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’.

50 It should also be borne in mind that, in order for it to be possible to categorise advantages as ‘State aid’ within the meaning of Article 107(1) TFEU, they must be granted directly or indirectly through State resources and be attributable to the State (see judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 47 and the case-law cited). Those two conditions are separate and cumulative (see judgment of 30 June 2015, Netherlands and Others v Commission, T‑186/13, T‑190/13 and T‑193/13, not published, EU:T:2015:447, paragraph 63 and the case-law cited).

51 Regarding the condition of use of State resources, it is apparent from the case-law that it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 107(1) TFEU. In particular, measures which, in various forms, mitigate the burdens normally included in the budget of an undertaking, and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect, are considered to be aid (see judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraphs 100 and 101 and the case-law cited).

52 It is settled case-law that Article 107(1) TFEU defines measures of State intervention in relation to their effects (see judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 77 and the case-law cited; judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 102).

53 Thus, State intervention capable of both placing the undertakings which it applies to in a more favourable position than others and creating a sufficiently concrete risk of imposing an additional burden on the State in the future, may place a burden on the resources of the State (see judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 106 and the case-law cited).

54 Moreover, the Court of Justice has had occasion to state that advantages given in the form of a State guarantee can entail an additional burden on the State (judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 107; see also, to that effect, judgments of 1 December 1998, Ecotrade, C‑200/97, EU:C:1998:579, paragraph 43, and of 8 December 2011, Residex Capital IV, C‑275/10, EU:C:2011:814, paragraphs 39 to 42).

55 Furthermore, it has been held in the case-law that, where, in economic terms, the alteration of the market conditions which gives rise to an advantage given indirectly to certain undertakings is the consequence of the public authorities’ loss of revenue, even the fact that investors then take independent decisions does not mean that the connection between the loss of revenue and the advantage given to the undertakings in question has been eliminated (judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 108).

56 Consequently, for the purposes of establishing the existence of State aid, the Commission must establish a sufficiently direct link between, on the one hand, the advantage given to the recipient and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget (judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 109).

57 In the present case, as regards (i) whether Measure 1 can be imputed to the State, it is apparent from recital 60 of the contested decision, and it is common ground between the parties, that the amounts of the financial guarantees due by the applicant were set by the Generalitat de Catalunya in two individual administrative decisions, namely the permits issued to the applicant on 9 November 2006 and 28 April 2008, to operate the mining sites of Súria and of Sallent/Balsareny, respectively.

58 As regards (ii) the State resources criterion, in recital 88 of the contested decision, the Commission considered, with regard to Measure 1, that the financial guarantees at issue were not examined in the light of the standards applicable to State aid rules as to the amount of fee possibly foregone in light of the risk or exposure incurred by the guarantor (i.e. a private bank, not the State) but as to the risk for the State in case the guaranteed amount is lower than the actual costs of the environmental damage and in case the guaranteed company does not or cannot pay the full restoration costs. In recital 90 of the contested decision, the Commission reiterates that there is a concrete risk of a potential effect on State resources due to the increased risk for the State to be obliged to call upon its resources in the future. Moreover, in recital 91 of that decision, it considers that the creation of a concrete risk of imposing an additional burden on the State in the future is sufficient for the purposes of fulfilling the notion of State aid and that the link to and effect on State resources of an aid measure need not be direct for this criterion to be met.

59 In recitals 92 to 99 of the contested decision, the Commission states that the increased risk that State resources might be affected in the future stems from the amount of the guarantees being significantly lower than any expected restoration costs, since, in the event that the applicant is not willing or able to pay for that restoration, State resources would have to cover a greater part of those costs, the State’s obligation to step in on its own account in the event that the applicant is not willing or able to take the necessary restoration measures being well established in the applicable national and EU legislation. The Commission concludes from this that the level of guarantees which is significantly lower than necessary, as required by law, exposes the State to a risk of additional burden on its resources. The increased risk is thus sufficiently concrete to constitute at least a potential impact on the State’s resources. The Commission observes, moreover, that the applicant’s assets which the State could seize in the event of forced execution might prove to be insufficient.

60 In the first place, the applicant does not dispute that the amount of the financial guarantees, as set by the administrative decisions of the Generalitat de Catalunya, was too low. It is true that the applicant contests, in its second plea, the method of analysis and the evidence on which the Commission based its conclusion that the amount of those guarantees was indeed too low and that they conferred an economic advantage on it. However, the applicant does not state that the amount of the financial guarantees initially set by the administrative decisions of the Generalitat de Catalunya was correct or sufficient.

61 In the second place, it must be noted that the Spanish State had a subsidiary obligation to intervene in the event of non-compliance with the environmental protection obligations imposed on the undertakings engaged in mining activity, as was clearly highlighted in recitals 93 to 98 of the contested decision. Indeed, on the one hand, under national law, and in particular the provisions of Ley 27/2006 por la que se regulan los derechos de acceso a la información, de participación pública y de acceso a la justicia en materia de medio ambiente (incorpora las Directivas 2003/4/CE y 2003/35/CE) (Law 27/2006 regulating rights of access to information, public participation and access to justice in environmental matters (transposition of Directives 2003/4/EC and 2003/35/EC)), of 18 July 2006 (BOE No 171, 19 July 2006, p. 27109), the authorities may be obliged to comply with their obligations under environmental legislation. In addition, pursuant to Article 102 of Ley 39/2015 del Procedimiento Administrativo Común de las Administraciones Públicas (Law No 39/2015 on common administrative procedure for the public administrations), of 1 October 2015 (BOE No 236, of 2 October 2015, p. 89343), the State may take measures in lieu of the party legally responsible for taking measures. On the other hand, under EU law, and in particular Article 6(3) of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 156), if an operator responsible for taking remedial measures following environmental damage fails to comply with its obligations, the competent authority may take these measures itself, as a means of last resort. Moreover, if the State were to fail to act in lieu of the undertakings, in the event that those undertakings fail to fulfil their environmental obligations, the State might be in breach of its obligations under Directive 2006/21 and risk being the subject of infringement proceedings and being ordered to pay periodic penalty payments until it complies with those obligations.

62 In the third place, the purpose of the legal obligation laid down in Article 14 of Directive 2006/21 requiring undertakings operating mining sites to set up a guarantee for the rehabilitation of sites and to cover the costs of any environmental damage caused by the mining operation, the amount of which must be calculated on the basis of the factors set out in paragraph 2 of that article, is to ensure that mining companies have sufficient resources to cover future costs of rehabilitation of mining sites, irrespective of their future financial situation, and to ensure in particular that the State does not have to intervene to cover those costs in lieu of those companies.

63 Because of the State’s obligation to effect enforcement in lieu of the undertaking legally bound to adopt the necessary restoration measures stemming from the mining operation, the level of the guarantees set for that undertaking is capable of having an impact on State resources, in so far as the economic risk of its subsidiary intervention is, where the level of guarantees is set at too low a level, quantitatively increased in the event, in particular, of that undertaking’s being insolvent.

64 In the fourth place, it is apparent from the case-law, referred to in paragraph 53 above, that the resources of the State may be regarded as having a burden placed on them also if it is established that there is a ‘sufficiently concrete risk’ of an additional burden being imposed on the State in the future.

65 In that regard, first, the applicant claims that the risk that a burden is placed on State resources is not sufficiently concrete in the present case because it has the financial capacity to cover any environmental damage stemming from its mining operation. When it was questioned on this point by the Court in the context of a measure of organisation of procedure, the applicant provided a list of the assets (immovable assets) in its possession from 2012 to 2016, also at the level of the group of undertakings to which it belongs, as well as the part of its annual balance sheets relating to those assets. At the hearing, the Commission drew attention to the fact that the documents provided by the applicant did not refer to the liabilities and debts of the company and presented the assets that it and its group possessed solely for the period from 2012 to 2015-2017 and that it had not provided any data relating to the remainder of the relevant period, from 2006 to 2012.

66 It should be noted that the information provided by the applicant in order to determine its financial capacity to bear the costs of any environmental damage associated with the operation of its mining sites is incomplete and does not make it possible to conclude with certainty that it would have had the necessary financial capacity to cover them at the time of the possible occurrence of the environmental risks.

67 In any event, on the assumption that the applicant does have sufficient financial capacity to reduce the risk of the State having to intervene, it must be held that, in view of the fact that the financial situation of a company is capable of changing at any time due to various random economic factors, and in so far as, in general, the obligation to provide a financial guarantee is aimed precisely at ensuring that funds are available at any time and irrespective of the financial capacity of the entity required to provide that guarantee, the financial capacity of that entity has no bearing on the determination of the appropriate amount of those guarantees and, ultimately, on the assessment of whether there is a sufficiently concrete risk of a burden being placed on the State budget.

68 Moreover, Article 14(2) of Directive 2006/21 specifies that the calculation of the guarantee referred to in paragraph 1 is to be made on the basis of the likely environmental impact of the waste facility, taking into account in particular the category of the waste facility, the characteristics of the waste and the future use of the rehabilitated land, and of the assumption that independent and suitably qualified third parties will assess and perform any rehabilitation work needed. The financial capacity of the company managing the facility is not therefore a relevant criterion for setting the amount of the guarantees.

69 In addition, it is apparent from the case-law, referred to in paragraph 55 above, that what matters is the alteration of the normal market conditions which could affect the State budget, regardless of the likely conduct of private operators and, in the present case, of the applicant’s ability to cover itself in concreto the costs of any environmental damage associated with its mining operations.

70 Second, the applicant disputes the admissibility and merits of the Commission’s arguments relating to the applicability by analogy in the present case of the case-law on State guarantees. As regards the admissibility of those arguments, it should be noted that the Commission relied before the Court, in particular, on the judgments of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579), and of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others (C‑399/10 P and C‑401/10 P, EU:C:2013:175), in order to support the proposition that the lack of direct and clear mobilisation of State resources still entails an additional burden for the State budget. That proposition of the Commission is contained, without any ambiguity, in recital 91 of the contested decision. Consequently, contrary to the applicant’s claim, the Commission has not put forward, before the Court, a substituted statement of reasons or a statement of reasons supplementary to that contained in the contested decision. The Commission’s arguments are therefore admissible. As regards the merits of these arguments, it should be pointed out that, although, in the case of State guarantees, a burden is placed on the State budget, in particular, by the reduction of the premiums that it receives itself and therefore by an immediate reduction of its revenues, in a situation such as that in the present case, on the one hand, there is also an advantage for the applicant by virtue of the reduction in the premiums that it has to pay on an amount of the guarantees lower than that which it should have set up, thereby altering normal market conditions. The fact that the loss of revenues concerns the budget of the private banking institution does not prevent the identification of the existence of an advantage for the applicant resulting from the setting of the financial guarantees, which it was required to provide, at a level lower than that which was necessary.

71 On the other hand, it follows from the findings made in paragraphs 61 to 63 above that the risk of an additional burden being placed on the State budget is also present in a situation such as that in the present case, in which the applicable provisions require the setting of guarantees to cover environmental risks, admittedly set up with a private banking institution, and in which there is an obligation of subsidiary State intervention to cover those risks, since the provision by a mining undertaking of a guarantee at too low a level increases the risk of the State having to intervene. That increased risk places a burden on the State budget and the increase in that risk is the direct consequence of setting the amount of the guarantees due at too low a level.

72 Indeed, the setting of too low an amount of the guarantees intended to cover the environmental risks weighing, primarily, on the applicant and, on a subsidiary basis, on the State increases the risk of an additional burden on both holders of the environmental protection obligations. That increase in risk is a concrete additional burden on the budgets of both holders, the applicant and, on a subsidiary basis, the State.

73 Third, contrary to the applicant’s submission, the uncertainty or degree of probability as to whether the risk for the State will materialise is not a factor capable of rendering purely hypothetical the link between the advantage conferred on the applicant and the additional burden placed on the State budget, but represents solely an intrinsic characteristic of the concept of ‘risk’.

74 Fourth, the applicant asserts in essence that the State budget was not exposed to any economic risk before the contested decision was adopted, since the financial guarantees can be called upon only after the mining activities have ceased and since, during operation, in 2015 and 2016, those guarantees had been amended and had reached an adequate level.

75 However, it must be stated, as the Commission rightly points out, that the fact that the risk did not materialise does not eliminate the additional risk created by Measure 1, which is assessed at the time that the guarantee is provided and which continued during the period during which the level of the guarantee was too low.

76 In the fifth place, in so far as the applicant relies on the Sniace Decision, mentioned in paragraph 47 above, it should be recalled that, in that case, one of the alleged aid measures which had been analysed by the Commission was the alleged advantage stemming for Sniace from the fact that the Spanish authorities had not required it to comply with environmental protection legislation, in particular by building a waste treatment plant and remedying the environmental damage caused by it. According to the complainant, in that case, State resources were involved because of the State’s tolerance of the infringement of environmental legislation committed by that undertaking, since the State had to cover the costs of that damage.

77 According to the Commission, the two cases differ in so far as, in the case which gave rise to the Sniace Decision, the State had confined itself to not requiring the undertaking to comply with its environmental obligations, without itself having an obligation to build the plant in its place, whereas, in the present case, the State was obliged, pursuant to national and EU legislation, to intervene in lieu of the applicant if the latter did not comply with its obligations to restore its mining sites.

78 On the assumption that, as the applicant submits, the case which gave rise to the Sniace Decision is similar to the present case, in that it also concerned a future and hypothetical risk that the State would have to bear the environmental damage resulting from the breach by the undertakings of their obligations, it is sufficient to note that, according to well-established case-law, the Commission is not bound by its previous practice.

79 It is only in the context of Article 107 TFEU that the legality of a Commission decision finding that a measure constitutes aid must be assessed, not by reference to an alleged earlier practice (see, to that effect, as regards the assessment of the compatibility of aid with the internal market, judgment of 21 July 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, C‑459/10 P, not published, EU:C:2011:515, paragraph 38 and the case-law cited).

80 It follows from all of the foregoing that the Commission did not make an error of assessment in finding, in recital 90 of the contested decision, that Measure 1 had a potential effect on State resources because of the increased risk that the State would be obliged to call upon its resources in the future and, in recital 91 of that decision, that the creation of a concrete risk of imposing an additional burden on the State’s resources in the future was sufficient for the purposes of fulfilling the notion of State aid, pursuant to Article 107(1) TFEU, in accordance with the case-law referred to in paragraph 56 above.

Second plea in law: infringement of Article 107(1) TFEU in so far as the Commission wrongly concluded that Measure 1 conferred an advantage or, in the alternative, in so far as it failed to establish that the initial amounts of the financial guarantees were too low

82 The applicant claims, in the first place, that the Commission has not positively established that Measure 1 had granted it a selective advantage because the Commission simply relied on the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia), confirmed by the Tribunal Supremo (Supreme Court), and did not independently determine the ‘correct’ amount of the guarantees that it had provided. A national court judgment cannot, however, bind the Commission and the Commission cannot discharge its duty to establish an advantage by reference to such a judgment.

83 The Commission’s failure to comply with its obligations to examine the facts was even greater in relation to the Súria site, since that site had not been the subject of any national court ruling and the Commission simply extended the finding of the national courts which are mentioned in paragraph 82 above as to the amount of the excessively low guarantees for the Sallent/Balsareny site to that site, by merely stating, in recital 64 of the contested decision, that the amount of the guarantee relating to that site should also be considered to have been too low, since it had also been increased and no other factor explained the difference between the amount originally set and the amount amended in 2015. The Commission committed an error of assessment, since the updating of that amount was based on regularly updated restoration plans.

84 In the second place, the Commission erred, in recital 75 of the contested decision (i) by relying — in order to substantiate its finding — on experts’ studies, in particular a study of August 2012, commissioned from environmental experts (‘the ERF Study’), which had not complied with the relevant applicable provisions and which were based on unrealistic assumptions, unofficial information and dubious methodology, lacking scientific and technical rigour and (ii) by ignoring the expert report submitted by the applicant (‘the Amphos experts’ report’), which demonstrates the unreliability of the ERF Study. The fact that that report was not available to the Commission during the administrative procedure is irrelevant, since the applicant had already questioned the reliability of the ERF Study during that procedure and the Commission had sufficient indications that it could not rely on it.

85 In the third place, the Commission wrongly relied, in recital 67 of the contested decision, on parliamentary discussions, even though it itself considered that such discussions had to be treated cautiously.

86 In the fourth place, the Commission did not establish, in recital 84 of the contested decision, that the interpretation of the legislative provisions for determining the amounts of the guarantee concerning mines was selective with regard to the applicant.

87 In the alternative, the applicant states that, should the Court find that Measure 1 confers a selective advantage, in recitals 109 to 122 of the contested decision the Commission established the amount of the aid in breach of Article 16(1) of Regulation 2015/1589, by reference to the ERF Study, even though the Amphos experts’ report demonstrated that the ERF Study was unreliable, and on the basis of the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia), finding the amount referred to in that judgment to be ‘correct’, and engaging in a speculative estimate. Moreover, the Commission did not establish the method which the Kingdom of Spain was supposed to use to calculate the amount of aid to be recovered.

89 As a preliminary point, it should be noted that Article 14(1) of Directive 2006/21 provides that ‘the competent authority shall, prior to the commencement of any operations involving the accumulation or deposit of extractive waste in a waste facility, require a financial guarantee (e.g. in the form of a financial deposit, including industry-sponsored mutual guarantee funds) or equivalent, in accordance with procedures to be decided by the Member States’.

‘The calculation of the guarantee referred to in paragraph 1 shall be made on the basis of:

– the likely environmental impact of the waste facility, taking into account in particular the category of the waste facility, the characteristics of the waste and the future use of the rehabilitated land;

– the assumption that independent and suitably qualified third parties will assess and perform any rehabilitation work needed.’

‘Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary … The Commission shall not require recovery of the aid if this would be contrary to a general principle of Union law.’

92 It is apparent from settled case-law that the question whether aid is State aid within the meaning of the FEU Treaty must be determined on the basis of objective elements, which must be appraised on the date on which the Commission takes its decision. Accordingly, it is the appraisal of the situation carried out by the Commission on that date which is to be reviewed by the EU Courts (see judgment of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraph 50 and the case-law cited).

93 Moreover, it has been held that the lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission at the time when the decision was adopted (judgment of 20 March 2013, Rousse Industry v Commission, T‑489/11, not published, EU:T:2013:144, paragraph 33 and the case-law cited). Similarly, it cannot be complained that the Commission failed to take into account matters of fact or law which could have been submitted to it during the administrative procedure but which were not, as the Commission is under no obligation to consider, of its own motion and on the basis of prediction, what information might have been submitted to it (see, to that effect, judgment of 27 September 2012, Wam Industriale v Commission, T‑303/10, not published, EU:T:2012:505, paragraph 119 and the case-law cited).

94 In the present case, in order to find that the setting of the amount of the financial guarantees constituted an aid measure falling within the scope of Article 107 TFEU, the Commission was required to establish that the level of those guarantees was indeed inadequate and significantly lower than that which would have been necessary to cover the costs of restoring the mining sites operated by the applicant.

95 According to the Court’s settled case-law, State aid, as defined in the FEU Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the EU Courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (see judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 111 and the case-law cited).

96 However, when conducting such a review, the EU Courts must not substitute their own economic assessment for that of the Commission. The review by the European Union judicature of the complex economic assessments made by the Commission is necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (see judgment of 12 October 2016, Land Hessen v Pollmeier Massivholz, C‑242/15 P, not published, EU:C:2016:765, paragraph 28 and the case-law cited).

97 In the first place, it should be pointed out that the Commission stated, by way of a premiss for its examination, in recital 61 of the contested decision, that it had not engaged in its own evaluation of the correct levels of the financial guarantees according to Directive 2006/21, but had limited its assessment to evaluating the existing evidence of the insufficiency of the financial guarantees. In fact, a number of pieces of evidence suggested that the amount of the financial guarantees as set by the public authorities in 2006 and 2008 was actually lower than required under the applicable legislation.

98 That approach is justified by the discretion afforded to Member States in setting the amounts of guarantees, for which Article 14 of Directive 2006/21 provides only guidelines or criteria that Member States must take into account in calculating those guarantees. Thus, the Commission could not have independently set the amount of the appropriate guarantee in the present case without exceeding the limits of its competence. Consequently, the applicant’s argument that the Commission infringed its duty of care, in so far as it did not make an independent determination of the amount of the guarantee, cannot succeed.

99 In the second place, in so far as indicia that the guarantee was fixed at an excessively low amount had been submitted to it, the Commission was entitled to examine the national measure at issue in the light of the State aid rules, and on the basis of the information made available to it during the administrative procedure, in accordance with the case-law referred to in paragraphs 92 and 93 above.

100 First, the Commission took into account the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) of 11 October 2011, in which it was held that the restoration plan for the Sallent/Balsareny site was incomplete and that the level of the guarantee set in relation to it was too low.

101 In that regard, the applicant has not succeeded in showing, by its arguments, that the Commission erred in taking that judgment into account in its assessment. Indeed, as the Commission rightly observes, the national court, which is responsible for the interpretation and application of national law, was best placed to assess whether the restoration plan for the mining site in question was sufficient in the light of the applicable national legislation. In the contested decision, the Commission analyses that judgment in detail. In recital 62 of that decision, the Commission observes that the national court considered that the amount of the guarantee does not respect the legal and regulatory parameters set by Article 8(2) of Catalan Law 12/1981 and Decree 202/1994 and that, even in the absence of any conclusive proof to determine the correct amount, it could be concluded that the amount which had been set was clearly insufficient and not in line with those legal provisions and that it had ordered the national authorities to set the financial guarantee at a new level.

102 The national court did not therefore set the amount of the guarantees that would have been correct. It was the competent national authorities which amended and reset the amount of the guarantees, based on the observations of that court. It is stated in recital 62 of the contested decision that the national authorities, which are competent to set the amount of the guarantees, relied on the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) of 11 October 2011 to revise those amounts, which confirms the relevance of that judgment in the context of the assessment that the Commission was required to make. Moreover, that judgment had also been upheld on appeal by the judgment of the Tribunal Supremo (Supreme Court) of 9 July 2014.

103 Furthermore, while the Commission is not bound by the decisions of the national courts (Opinion of Advocate General Geelhoed in Lucchini, C‑119/05, EU:C:2006:576, point 24), it is certainly free to take them into account if it considers them relevant to its assessment.

104 In any event, it should be noted that the Commission did not confine itself to following the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) of 11 October 2011, but took it into account in the context of a body of evidence in its possession, indicating that the amounts of the financial guarantees provided by the applicant were insufficient.

105 As regards the applicant’s argument concerning the alleged error made by the Commission in recital 64 of the contested decision, by applying by analogy the findings of the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) to the calculation of the amount of the financial guarantee relating to the Súria site, whereas the judgment concerned the Sallent/Balsareny site alone, as the Commission notes without being contradicted on this point by the applicant, the latter did not provide, including in the context of this action, indicia of such a kind as to show that the setting of the amount for that second site should have followed calculation criteria different from those identified in the abovementioned judgment. In the absence of other factors which might have caused the Commission to doubt that it was possible to apply those criteria also to the Súria site, or which highlight differences between the restoration plans necessary for the two sites, the applicant cannot call into question the application by analogy of the calculation criteria set out in the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) to the Súria site.

106 In particular, the applicant’s criticism aimed at calling into question the Commission’s conclusion that the revision by the competent authorities of the amount of the guarantee relating to the Súria site in 2015 was not an indication that that amount had also been set at too low a level, as the Commission found, but that it constituted a normal periodic revision of that amount, cannot succeed. The applicant does not substantiate that assertion with any explanation of the method of periodic revision of the guarantees, the intervals at which those revisions were carried out or of the fact that the 2015 revision was indeed one of those periodic revisions, or with any evidence capable of demonstrating such an assertion.

107 In accordance with the case-law referred to in paragraph 93 above, it cannot be complained that the Commission failed to take into account matters of fact or law which could have been submitted to it during the administrative procedure but which were not, as the Commission is under no obligation to consider, of its own motion and on the basis of prediction, what information might have been submitted to it.

108 Second, as is indicated in recital 66 of the contested decision, the Commission took other pieces of evidence into account which corroborated the finding reached by the national courts that the level of the financial guarantees at issue was unduly low. The Commission inter alia examined the official transcripts from the hearing before the Environmental Committee of the Catalan Parliament of 2 October 2013 which contained a statement by the Director-General for Environment of the Generalitat de Catalunya according to which those guarantees were clearly insufficient.

109 The applicant disputes that those discussions should have been taken into account, since the Commission itself took the view that they needed to be treated cautiously. However, it must be stated that, although the Commission did not consider it appropriate to take those discussions into account so far as the setting of the exact amount of the guarantees was concerned, it was entitled to take into account the statement referred to in the previous paragraph as an indication corroborating the finding that the amount of the guarantees was too low.

110 Third, the Commission took into account an environmental expert study of August 2012, namely the ERF Study, submitted by the complainant, which was intended to analyse the existing situation as regards the environmental impact of the mining sites in the Bages (Spain) area in which the applicant’s mining sites are located and the measures adopted by the public authorities to reduce that impact. Moreover, that study forecasted future developments as regards the total amount of material accumulated on the waste heaps, concluding that the environmental impacts of those waste heaps were significant and expected to further grow in the future. That study also analysed the possible options for restoration of other potash operations and their costs and concluded that the most appropriate method for the applicant’s sites was that of covering the waste heaps.

111 The applicant disputes that that study should have been taken into account, calls into question its reliability, completeness, scientific rigour and method of analysis followed, and produces, for the first time before the Court, another study, commissioned by itself, namely the Amphos experts’ report, which it claims highlights the flaws in the ERF Study.

112 In that regard, it should be recalled that, first of all, in accordance with the case-law referred to in paragraph 92 above, the applicant cannot criticise the Commission for not taking into account the flaws in the ERF Study, as identified in the Amphos experts’ report, since that report was not part of the evidence available to the Commission at the time that it adopted the contested decision. Moreover, it must be stated, as the Commission has observed, that the sole object of that report was the technical review of the ERF Study, as indicated in its title, and that it did not provide any other independent content. Lastly, the Amphos experts’ report did not suggest an amount of guarantees different from the amount finally adopted by the Commission taking into account the ERF Study. Consequently, the applicant has not demonstrated how the alleged errors contained in the ERF Study affected the setting of the correct amount of the guarantees at issue.

113 Moreover, in so far as the applicant claims that the Commission already had in its possession the applicant’s observations highlighting the alleged flaws in the ERF Study during the pre-litigation procedure, it must be noted, as the Commission observes, in accordance with the case-law referred to in paragraphs 95 and 96 above, that the Commission’s assessment relating to the method on which the ERF Study was based, consisting in identifying the possible restoration options and, among those options, the most appropriate for the sites in question, and then in calculating the likely costs that such a method would have entailed, is not manifestly incorrect. As the Commission rightly observes, Royal Decree 975/2009 on which the ERF Study was based and Decree 202/1994, which should have been taken as a basis for that study according to the applicant, both relate the calculation of the amount of the financial guarantees to the expected costs of restoration of the sites. Moreover, the calculation of the expected costs carried out by the ERF Study is based on the analysis of the unit costs of the individual components of the covering for the waste heap resulting from market research undertaken by experts with the entrepreneurs and suppliers concerned. The results of that calculation were also compared to the total costs of the possible restoration options, as estimated in another study carried out for the Commission’s Directorate-General (DG) Environment. Accordingly, the applicant cannot criticise the Commission for having taken the view, in recital 75 of the contested decision, that the ERF Study was reliable and based on a sound methodology and reasonable assumptions, providing an adequate basis for formulating an estimate of the expected restoration costs, especially since it also compared the results of that study with those obtained for similar facilities in other parts of the world.

114 Consequently, recital 75 of the contested decision cannot be considered to be vitiated by a manifest error of assessment.

115 Fourth, the applicant submits that the Commission failed to establish that the measure was selective, namely that the national provisions setting the amount of the guarantees at issue had been interpreted selectively with regard to the applicant.

116 In this respect, it is sufficient to note that the Measure 1 in question was granted, as is stated in recital 60 of the contested decision, by means of specific operating permit decisions addressed to the applicant. Accordingly, the applicant cannot call in question the fact that it was the only undertaking covered by that measure.

117 It has been held that the selectivity requirement differs depending on whether the measure in question is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective (judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 60; see also, to that effect, judgment of 26 October 2016, Orange v Commission, C‑211/15 P, EU:C:2016:798, paragraphs 53 and 54).

118 It follows from the foregoing that the Commission did not make an error of assessment by finding, in recitals 82 to 85 of the contested decision, that Measure 1 conferred a selective advantage on the applicant.

119 Fifth, with regard to the argument raised in the alternative by the applicant concerning an alleged error in the calculation of the amount of the aid, in breach of Article 16(1) of Regulation 2015/1589, it should be noted that the applicant reiterates in this context most of the criticisms already made in the context of this plea and which were rejected in paragraphs 100 to 113 above.

120 In particular, it should be noted that the Commission considered that the amount of the guarantees, as revised by the national authorities in 2015 and 2016, on the basis of the judgments of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia), could be considered appropriate, on the basis of the results of the ERF Study.

121 As was explained in paragraphs 99 to 113 above, the Commission did not commit either a manifest error of assessment by taking into account the ERF Study or an error of assessment by relying on the judgments of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia).

122 Furthermore, the Commission observes, without being challenged on this point by the applicant, that the amount of the restoration costs used was the lowest of all the available estimates and that this amount had been further reduced pursuant to Article 3 of Decree 202/1994, which provided for a 50% reduction for mining activities not located in natural sites of special interest.

123 In the light of the foregoing, the argument raised in the alternative by the applicant cannot be accepted and, therefore, the second plea must be rejected in its entirety.

The third plea, alleging breach of the principles of the protection of legitimate expectations and legal certainty

124 The applicant submits that, should the Court find that Measure 1 constituted State aid incompatible with the internal market, it should annul the contested decision in so far as that decision requires that aid to be recovered.

125 In the first place, the recovery decision infringes the applicant’s legitimate expectations in the lawfulness of the amounts of the financial guarantees as initially set. Although case-law has clarified that an undertaking cannot rely on legitimate expectations to challenge the recovery of unlawful aid, the present case is marked by exceptional circumstances, which could have given rise to such expectations. First, the applicant had a legitimate expectation that it was not receiving unlawful aid, in view of the Commission’s previous decision in the case which gave rise to the Sniace Decision, referred to in paragraph 47 above, and of infringement proceedings brought against the Spanish State for failure to comply with its obligations under Directive 2006/21. Those infringement proceedings did not relate to the amount of the financial guarantees provided for in Article 14 of that directive. On the assumption that the Court takes the view that those factors are not sufficient to establish such an expectation, the applicant submits that it nevertheless lawfully entertained such an expectation, since the conditions for determining whether a measure may qualify as notifiable aid were, in the present case, complex and difficult to apply, which in its view placed it in a position of uncertainty.

126 Second, the applicant claims that, as a reasonable and diligent economic operator, it could not have expected that the Commission would consider that the setting of financial guarantee amounts aimed at covering the costs related to environmental obligations would constitute unlawful aid, in view of the exceptional circumstances mentioned in the previous paragraph. In particular, the applicant takes the view that the novelty presented by this case does not relate to whether an advantage was granted, but lies in the Commission’s finding of a transfer of State resources. Moreover, according to the applicant, it follows from the Commission’s practice in previous decisions, in particular Decision 2006/621/EC of 2 August 2014 on the State aid implemented by France for France Télécom (OJ 2006 L 257, p. 11), that recovery of unlawful State aid is not appropriate, as it would be contrary to the beneficiary’s legitimate expectations.

127 Third, in the present case, the legitimate expectations outweigh any other public interest that may be served by recovery. The excessively low amounts of the guarantees had insignificant, if any, effects on the market, such that recovery of the aid in the present case is not warranted to reverse distortions of competition.

128 In the second place, the applicant claims that the contested decision also infringes the principle of legal certainty, in so far as the finding that the setting of an insufficient financial guarantee amount in order to secure compliance with environmental obligations constitutes unlawful State aid does not have a sufficiently clear and precise basis in State aid rules and also infringes Article 16 of Regulation 2015/1589. The applicant moreover relies on Commission Decision 2009/174/EC of 21 October 2008 on measure C 35/04 implemented by Hungary for Postabank and Takarékpénztár Rt./Erste Bank Hungary Nyrt (OJ 2009 L 62, p. 14), in which, according to the applicant, the Commission declined to recover the unlawful aid on the ground that to do so would infringe the principle of legal certainty.

130 In accordance with the Court’s settled case-law, the logical consequence of a finding that aid is unlawful is the removal of that aid by means of recovery in order to re-establish the situation previously obtaining. The main objective pursued in recovering unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage which such aid affords. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 131).

131 It also follows from that function of repayment of aid that, as a general rule, the Commission will not, save in exceptional circumstances, exceed the bounds of its discretion if it asks the Member State to recover the sums granted by way of unlawful aid, since it is only restoring the previous situation (judgment of 9 September 2009, Diputación Foral de Álava and Others v Commission, T‑227/01 to T‑229/01, T‑265/01, T‑266/01 and T‑270/01, EU:T:2009:315, paragraph 373).

132 With regard to the allegation of a breach of the principle of the protection of legitimate expectations, according to settled case-law, the right to rely on that principle extends to any person who has been caused by an EU institution to entertain expectations which are justified by precise assurances provided to him (see judgment of 21 July 2011, Alcoa Trasformazioni v Commission, C‑194/09 P, EU:C:2011:497, paragraph 71 and the case-law cited). Such assurances, in whatever form they are given, are precise, unconditional and consistent information from authorised and reliable sources. However, a person may not plead breach of that principle unless he has been given precise assurances by the administration (see judgment of 14 February 2006, TEA-CEGOS and Others v Commission, T‑376/05 and T‑383/05, EU:T:2006:47, paragraph 88 and the case-law cited).

133 It follows from that principle, which is especially applicable in relation to the review of State aid pursuant to Article 16 of Regulation 2015/1589, that the protection of the legitimate expectations of the recipient of the aid can be relied upon, provided that the recipient has sufficiently precise assurances, arising from a positive action taken by the Commission, which leads the recipient to believe that a measure does not constitute State aid for the purposes of Article 107(1) TFEU (see, by analogy, judgment of 30 November 2009, France and France Télécom v Commission, T‑427/04 and T‑17/05, EU:T:2009:474, paragraph 261).

134 It should moreover be recalled that the notification requirement is one of the fundamental features of the system of control put in place by the FEU Treaty in the field of State aid. Under that system, Member States are under an obligation, first, to notify to the Commission each measure intended to grant new aid or alter aid for the purposes of Article 107(1) TFEU and, second, not to implement such a measure, in accordance with Article 108(3) TFEU, until that institution has taken a final decision on the measure.

135 Consequently, in view of the mandatory nature of the review of State aid by the Commission, 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 Article 108 TFEU and a diligent business operator should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, with the result that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (judgments 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, paragraphs 44 and 45, and of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 59).

136 However, a recipient of unlawfully granted aid is not precluded by the case-law from relying on exceptional circumstances on the basis of which it had legitimately assumed that aid to be lawful and thus from declining to refund that aid (see, to that effect, judgment of 9 September 2009, Diputación Foral de Álava and Others v Commission, T‑30/01 to T‑32/01 and T‑86/02 to T‑88/02, EU:T:2009:314, paragraph 282 and the case-law cited).

137 It has also been held that a diligent business operator should normally be able to determine whether the notification procedure has been followed (see, to that effect, judgments of 20 September 1990, Commission v Germany, C‑5/89, EU:C:1990:320, paragraph 14, and of 14 January 1997, Spain v Commission, C‑169/95, EU:C:1997:10, paragraph 51).

138 Moreover, it is established case-law that the principle of legal certainty requires European Union legislation to be certain and its application foreseeable by those subject to it (see judgment of 21 July 2011, Alcoa Trasformazioni v Commission, C‑194/09 P, EU:C:2011:497, paragraph 71 and the case-law cited).

139 In the first place, with regard to the alleged breach of the principle of the protection of legitimate expectations, it is apparent from the case-law referred to in paragraphs 132 to 136 above that, in order to rely usefully on that principle, an applicant must demonstrate that it has received sufficiently precise, unconditional and consistent assurances arising from a positive action taken by the Commission, which leads it to believe that a measure does not constitute State aid or the existence of exceptional circumstances on the basis of which it had legitimately assumed that aid to be lawful.

140 In the present case, the applicant relies, in essence (i) on the Sniace Decision mentioned in paragraph 47 above, since the Commission had allegedly concluded in that case that the non-enforcement of statutory environmental obligations by the Spanish State did not constitute State aid as no transfer of State resources was involved in such a case and (ii) on the infringement proceedings brought by the Commission against the Spanish State for non-compliance with obligations under Directive 2006/21 and Directive 2000/60/EC of 23 October 2000 of the European Parliament and of the Council establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1), to the extent that those proceedings had not related to the setting of unduly low financial guarantee amounts under Article 14 of Directive 2006/21. According to the applicant, there was thus no indication that the Commission might have considered that the implementation of that directive by the Spanish authorities conferred an advantage under Article 107(1) TFEU.

141 However, first, a precedent cannot constitute precise, unconditional and consistent assurances, since the precedent was not concerned with analysing the applicant’s particular situation.

142 In any event, as regards earlier practice, it was already noted, in paragraph 79 above, that it is not binding on the Commission, which is deemed to base its assessment solely on the applicable legal provisions of the TFEU and secondary legislation.

143 In view of the foregoing, the applicant cannot rely on the earlier decision in Sniace either as precise, unconditional and consistent assurances or as exceptional circumstances.

144 Second, with regard to the infringement proceedings, brought against the Spanish State for breach of Directive 2006/21 and Directive 2000/60, it should be noted, as the Commission observes, that the fact that the Commission did not plead infringement of Article 107 TFEU in the context of such proceedings, which had another object, namely the infringement of EU environmental legislation, could not give rise to a legitimate expectation on the part of the applicant that the Commission would no longer look into other aspects which might lead to the infringement of Article 107 TFEU.

145 Accordingly, the fact that the Commission did not plead a breach of the State aid rules in the light of the insufficient financial guarantees provided by the beneficiary of the measure in the context of the infringement proceedings mentioned in the previous paragraph cannot constitute either precise, unconditional or consistent assurances or an exceptional circumstance which are capable of giving rise to any legitimate expectation on the part of the applicant in the fact that Measure 1 was lawful.

146 Third, as regards the applicant’s claim that, in the present case, the legitimate expectations outweigh any other public interest in recovery, in view of the small amount of the aid, it is sufficient to recall that, under Article 16(1) of Regulation 2015/1589, the Commission is required, in principle, to decide that the State recovers the aid if it finds it unlawful and that that provision does not establish a threshold below which the Commission has a discretion as to the decision to recover.

147 Moreover, as was noted in paragraph 130 above, the aid must be recovered in order to restore conditions of competition in the internal market. Since the small amount of the aid is not deemed to preclude a distortion of competition (see, to that effect, judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 81 and the case-law cited), nor can that justify a decision not to recover that aid.

149 In the second place, with regard to the alleged infringement of the principle of legal certainty, for the same reasons as those indicated in paragraphs 141 to 145 and 147 above, the classification as aid of the mitigation of charges on the applicant’s budget, resulting from the setting of financial guarantees at too low a level, cannot be regarded as unforeseeable for the applicant under the case-law referred to in paragraph 138 above and therefore as contrary to the principle of legal certainty.

150 In so far as the applicant states that the allegedly novel and unforeseeable nature of the Commission’s classification lies in the finding that Measure 1 involved a transfer of State resources, it must be held that the conclusion that Measure 1 had involved an increase in the risk to the State budget, in view of the subsidiary obligation on the Spanish State to intervene in the enforcement of the applicant’s environmental obligations, despite the absence of identical precedents in the Commission’s decision-making practice, was moreover not unforeseeable for an observant and circumspect operator. Measure 1 necessarily resulted in an increase of the risk on the State, on the basis of the applicable legislation known to the applicant, to have to intervene in the event of the applicant’s insolvency.

151 Moreover, in so far as the applicant relies on the Commission’s earlier decision in the Postabank case, referred to in paragraph 128 above, in which the Commission decided not to recover the aid in question on the ground that recovery would run counter to the principle of legal certainty, the argument must be rejected (i) by analogy with the case-law referred to in paragraph 79 above and (ii) in view of the significant factual differences between the present case and the Postabank case. Indeed, it is sufficient to note, as the Commission did, that the Postabank case was part of the very specific context of Hungary’s accession to the European Union and of the uncertainty of economic operators as to the obligations that that accession had led to. By contrast, in the present case, the applicant was aware, since the judgment of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) of 11 October 2011, that the level of the financial guarantees provided was too low for the proper restoration of its sites.

152 It follows from all of the foregoing that the third plea in law must be rejected in its entirety.

The fourth plea, alleging infringement of Article 107(1) TFEU, in that the Commission found that Measure 4 conferred a selective advantage

153 The applicant submits that the Commission has not established that the covering of the Vilafruns waste heap formed part of the environmental obligations to which it was subject, or that the costs borne by the Spanish public authorities were costs that it would have had to bear if the public authorities had not covered the waste heap and disputes, in essence, recital 138 of the contested decision. According to the applicant, the Commission had to demonstrate that its financial situation was improved as a result of Measure 4 compared to its situation without it. Such an analysis should have been carried out on the basis of an assessment of the precise scope and extent of the legal obligations of the applicant and the costs required to meet those obligations. The only obligation on the applicant under Article 121 of the Spanish Mining Act was that of taking the restoration measures. The applicant states that it took such measures. Since the Spanish authorities’ decision to cover the Vilafruns waste heap involved costs much higher than those that it had estimated in the restoration plan, the applicant is in a worse (not better) situation compared to the situation in which the Vilafruns waste heap were not covered. Consequently, the applicant claims that it did not receive any advantage.

154 The applicant states that the Commission has not established that the financing of the covering of the Vilafruns waste heap had in fact improved its financial situation or mitigated a charge normally included in its budget. The applicant observes, moreover, that the mines of the Vilafruns waste heap were no longer in operation and therefore did not generate waste or additional risks of pollution. In addition, the Commission has not substantiated its assertion that the applicant ran risks that its civil and criminal liability would be incurred in relation to a mine which, unlike others it owned, was no longer in operation. Consequently, the judicial decisions, to which reference is made in recital 138 of the contested decision, are irrelevant to substantiate any risk of liability with regard to the Vilafruns mines. That risk therefore remains purely hypothetical. Moreover, the fact that covering waste heaps was a common practice in other Member States is entirely irrelevant to supporting the conclusion that the applicant should have taken measures additional to those provided for in its 2008 restoration plan.

155 The Commission has also failed to substantiate the claim that the increased protection in any event benefited the applicant by reducing the risk of pollution and having to pay compensation for any environmental damage. Furthermore, the Commission has entirely failed to substantiate its conclusion in recital 159 of the contested decision that the measures provided for by the applicant in its restoration plan did not guarantee an adequate level of environmental protection. Moreover, the covering of the Vilafruns waste heap reduced the economic value of the heap because no economic operator potentially interested in acquiring it could exploit the salt contained in that heap. It follows from all the foregoing that the Commission has not established to the requisite standard that, by Measure 4, the applicant had received an economic advantage.

157 According to settled case-law, the concept of ‘aid’ embraces not only positive benefits, such as subsidies, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 20 and the case-law cited). Thus, State measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions, are regarded as aid (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 84, and of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 87).

158 In this examination of what constitutes an advantage, the Commission must therefore assess whether the applicant was favoured directly or indirectly or obtained an advantage that it could not have obtained under normal market conditions.

159 In the present case, in recital 138 of the contested decision, the Commission considered that, regardless of the extent of the applicant’s obligations with respect to Vilafruns, it cannot be accepted that investment of EUR 7.9 million into significantly better environmental protection, in principle equivalent to the restoration of the site, without any investment cost to the applicant, did not yield any economic advantage for the applicant.

160 The Commission stated, moreover, that the alternative measures in the absence of aid would not have provided such effective and long-lasting protection and would have exposed the applicant to risks of having to bear the consequences of the pollution and that, therefore, the construction of the facility paid from public resources enabled the applicant to better prevent pollution, lower its environmental risks for the future and provide for a long-lasting restoration of the heap.

161 The applicant contests that assessment by submitting, in essence, that the measure of covering the Vilafruns waste heap was an independent decision of the public authorities, which went beyond its environmental obligations and which it was not required to adopt, and therefore that it could not be found that it had derived an advantage from it.

162 In the first place, it is not disputed that the covering of the Vilafruns waste heap was an effective and long-lasting measure to protect against pollution. The applicant confirmed at the hearing that it did not dispute such a finding and merely stated that the restoration measures provided for in its 2008 plan would have ensured equally effective protection. Nor did the applicant therefore claim that the measure of covering the waste heap was disproportionate.

163 In the second place, the fact that the covering of the waste heap was an effective, long-lasting and not disproportionate measure to combat pollution implies, in itself, that that measure contributed to resolving the problem of pollution, the consequences of which would have weighed on the applicant. Irrespective of the specific obligations and in particular the technically sufficient or more appropriate measures to ensure the restoration of the Vilafruns site, it must be held that, under the applicable national and EU legislation and the sales and purchase agreement of the applicant’s facility, which are referred to in recitals 131 to 136 of the contested decision, the applicant had a general responsibility to continually rectify any negative consequences of the pollution and management of that facility.

164 It follows from the foregoing that the applicant’s arguments that there was no obligation on it to cover the waste heap or to take more onerous restoration measures than the simple containment measures provided for in its 2008 restoration plan, which, in its opinion, would have been sufficient to meet its statutory environmental obligations, since the Vilafruns site was no longer in operation, are irrelevant in assessing the existence of an advantage for it as a result of Measure 4, in the light of the fact that the covering of the waste heap was an effective and long-lasting measure enabling the applicant to avoid having to adopt further environmental protection measures for a very long period.

165 In the third place, the State intervention, in the form of investment of EUR 7.9 million, intended to cover the Vilafruns waste heap, decided on and financed entirely by the public authorities, constitutes a positive benefit, in the same way as a subsidy, necessarily entailing an advantage for the applicant, which, as a result of the covering of the waste heap, will not have to implement any other restoration measure for a very long period. Moreover, even if, as the applicant claims, the containment measures provided for in the 2008 restoration plan might have ensured that leaks from the waste heap were kept under control in the short term, the fact remains that if other more important actions were to be taken by the applicant in the medium to long term, it would have had to bear the costs of those actions in the future. Consequently, Measure 4 undeniably favoured the applicant by reducing future environmental risks associated with the Vilafruns site.

166 In so far as the applicant claims that the Commission did not establish those future risks, it should be noted that the extent of those risks was not foreseeable or quantifiable for the Commission. In recital 158 of the contested decision, the Commission acknowledged that there are no specific Union standards that would set the level to be attained for Vilafruns waste heap in environmental terms. Moreover, for that reason, the Commission relied on two national judicial decisions in which the applicant had been held liable for environmental damage, both in civil and criminal law, in respect of other mining sites, in the light of leaks from mining sites for which only ‘light’ measures had been adopted, and inferred from this that, in fact, such future risks could also exist for the Vilafruns site. In addition, the Commission found that, also in other countries, the measure of covering waste heaps had been adopted to resolve the persistent problems of leaks from potash mines. Contrary to the applicant’s submission, the Commission was entitled to take this information into account in order to establish whether it was likely that future risks also existed for the Vilafruns waste heap, even if it could not quantify them precisely.

167 In the fourth place, it should be pointed out that, in any event, on the assumption that the future risks had not been established by the Commission in the contested decision, it is apparent from recitals 159 and 162 of the contested decision that the Commission acknowledged that the applicant was in a perfectly lawful situation so far as concerned compliance with its environmental obligations and that, by Measure 4, the State had decided to adopt a higher level of environmental protection than that which was necessary at the time of the adoption of the contested decision. That measure was part of a pilot project aimed at verifying the suitability of the method of covering the waste heaps for addressing the environmental problems of the Llobregat region (Spain) and therefore served a general public interest.

168 First, the State may decide to apply a higher level of environmental protection than the minimum required and, a fortiori, it may decide to take measures that are not yet necessary at a given time, but which may become necessary in the future, for an objective of general public interest. However, this does not mean that the applicant, as an undertaking which owns one of the sites concerned by the State measure, is exempt from bearing the costs of the measure.

169 As is stated in paragraph 9 of the 2008 Guidelines, Member States may impose requirements for environmental protection that go beyond EU requirements, in order to reduce to the greatest possible extent negative externalities entailed by economic activities which can harm the environment, on account of the pollution which they generate.

170 Under the ‘polluter-pays principle’, referred to in paragraphs 7 and 8 of the 2008 Guidelines, these negative externalities can be tackled by ensuring that the polluter pays for its pollution, which implies full internalisation of environmental costs by the polluter. This is intended to ensure that the private costs (borne by the undertaking) reflect the true social costs of the economic activity. The polluter-pays principle can be implemented either by setting mandatory environmental standards or by market-based instruments. Some of the market-based instruments may involve the granting of State aid to all or some of the undertakings which are subject to them. It is precisely with a view to creating incentives on an individual level (at the level of the undertaking) to achieve a higher level of environmental protection than required by Union standards or to increase the environmental protection in the absence of such standards that, according to paragraph 10 of the 2008 Guidelines, Member States may want to use State aid.

171 Second, under the applicable national legislation, and in particular Article 121 of the Spanish Mining Act, the owner of a non-operational mine must comply with the restoration plans approved by the mining authorities. It must be held that, in the present case, the competent authorities approved the measure of covering the Vilafruns waste heap.

172 In that regard, it should be noted that the Commission took into account the fact that the Spanish State had opted for a higher level of environmental protection and drew the appropriate conclusions from this when examining the compatibility of the aid, specifically by concluding that only the amount of EUR 3 985 109.70 had to be recovered from the undertaking and not the entire State investment amounting to EUR 7 887 571, in accordance with the 2008 Guidelines.

173 In the fifth place, in so far as the applicant claims that the covering of the Vilafruns waste heap rather worsened its economic situation, since, as a result of that measure, the waste heap allegedly lost its economic value as it could no longer be used for the extraction and sale of salt, it is sufficient to note that the applicant has not demonstrated, or substantiated the extent of the income that it allegedly lost and whether any such income should have been balanced against the restoration costs which it would have had to carry out during the operation of the waste heap.

174 In any event, the alleged reduction in the value of the Vilafruns waste heap cannot affect the finding of the existence of an advantage, unless it is considered that that reduction in value is more economically significant than the advantage produced by its long-lasting restoration, which has not been demonstrated in any way by the applicant.

Fifth plea in law: infringement of Article 16(1) of Regulation 2015/1589 in so far as the Commission did not correctly establish the amount of the aid, if any, arising from Measure 4

176 The applicant alleges, should the Court find that Measure 4 constituted aid, that the contested decision infringed Article 16 of Regulation 2015/1589 in so far as it did not correctly establish the amount of that alleged State aid. The Commission wrongly took into account the investment costs paid by the public authorities to cover the waste heap, increased by the operational profits deriving from that investment and decreased by the maintenance and operational costs borne by the beneficiary as a result of the investment. The Commission should have taken into account at most the amount resulting from the economic advantage corresponding to the sums that it would have had to spend in respect of the restoration measures that it was required to implement under its 2008 plan, in so far as they would have exceeded the maintenance and operational costs associated with Measure 4. That amount was nil and the Commission should therefore have found that there was no advantage. The applicant reiterates that the covering of the Vilafruns waste heap caused it, on the contrary, to lose income and opportunity costs because it was impossible to exploit the salt deposits contained in that waste heap.

178 This plea is closely related to the fourth plea and has been raised in the alternative to it.

179 As a preliminary point, it should be noted, as was mentioned in paragraph 172 above, that the Commission took into account the fact that Measure 4 was a measure to improve environmental protection, which had been decided on by the public authorities in order to guarantee a higher level of protection than that required by Union standards and which therefore went beyond existing needs at the time of the adoption of the contested decision, which the Commission itself acknowledges, in essence, in recital 162 of the contested decision.

180 In view of the foregoing, the Commission first found, in recital 157 of the contested decision, that it could apply Section 3.1.1 of the 2008 Guidelines, according to which investment aid enabling undertakings to go beyond Union standards for environmental protection or to increase the level of environmental protection in the absence of Union standards might be considered compatible with the internal market.

181 Next, in accordance with paragraph 80 of the 2008 Guidelines, in order to determine the amount of the eligible costs, the Commission, in recitals 161 and 162 of the contested decision, took into account the extra investment costs that would have been necessary to achieve the level of environmental protection higher than that which would have been achieved by the undertaking in the absence of any aid (namely the difference between the amount of State investment and the expected costs for the containment measures set in the 2008 restoration plan). In recital 165 of the contested decision, it deducted from that amount the operating profits, which for a non-active site such as Vilafruns amounted to zero and added the operating costs for the first five years. The Commission therefore found the total amount of the eligible costs to be EUR 7 804 922.60.

182 Lastly, in accordance with the maximum permitted threshold for large undertakings, the Commission found, in recitals 171 and 172 of the contested decision, that 50% of eligible costs, namely EUR 3 902 461.30, could be considered compatible with the internal market, thus reducing the amount of aid to be recovered to EUR 3 985 109.70.

183 Thus, the Commission ordered the recovery of the aid represented by Measure 4 from the applicant only in respect of the amount of EUR 3 985 109.70.

184 In the first place, the applicant alleges an error in the calculation of the amount of aid represented by Measure 4, in that the Commission did not take into account, as a point of reference for that calculation, its 2008 restoration plan, but the investment of EUR 7.9 million implemented by the Spanish State.

185 In so far as it was concluded, in paragraphs 162 to 171 above, that (i) the measure to cover the Vilafruns waste heap constituted a positive benefit and an effective, long-lasting and not disproportionate measure to remedy the leaks and pollution risks associated with that waste heap, which would in any event, under a general obligation on the applicant to restore the waste heap, have had to be borne by the latter and thus as entailing a medium- or long-term advantage for the applicant and (ii) that the State could impose a higher level of environmental protection on undertakings entrusted with the management of mining sites, it must be concluded that the Commission was right to take into account, in recital 165 of the contested decision, the amount of the investment implemented by the State as a starting point for calculating the amount of the aid.

186 In the second place, in so far as the applicant complains that the Commission failed to take into account the losses and costs that it allegedly incurred because it was impossible to exploit the salt deposits, it must be held that that mere claim, which is not substantiated by any evidence, cannot be upheld. It is apparent from recital 137 of the contested decision that, during the administrative procedure, the Kingdom of Spain had referred to the opportunity costs which the applicant allegedly incurred because it was no longer able to exploit the deposit for salt extraction. However, it is not apparent from those observations that such losses were quantified or substantiated during the administrative procedure. In the absence of such evidence, the alleged costs and losses must therefore be considered hypothetical.

187 Consequently, such hypothetical losses did not have to be taken into account by the Commission in calculating the amount of the aid, as is apparent from the case-law according to which the recovery of aid entails the restitution of the advantage procured by the aid for the beneficiary, not the restitution of the economic benefit that may have been conferred by the aid as a result of the exploitation of the advantage (judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 100).

188 It follows from the foregoing that the fifth plea must also be rejected and that, consequently, the action must be dismissed in its entirety.

189 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Iberpotash v Commission (State aid - Mining sector - Judgment) [2020] EUECJ T-257/18 (16 January 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T25718.html Cite as: ECLI:EU:T:2020:1, EU:T:2020:1, [2020] EUECJ T-257/18

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