Judgments nº T-257/18 of Tribunal General de la Unión Europea, January 16, 2020

• Resolution Date: January 16, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-257/18

(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)

In Case T-257/18

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

applicant,

v

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

defendant,

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),

THE GENERAL COURT (Second Chamber),

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

Registrar: P. Cullen, Administrator,

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

gives the following

Judgment

Background to the dispute

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.

Relevant national legislative provisions

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.

Administrative procedure

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.

Contested decision

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).

21 The operative part of the contested decision reads as follows:

‘Article 1

1. The State aid in favour of Iberpotash in the form of unduly low guarantee fees resulting from the unduly low...