Judgment — ECLI:EU:T:2007:120
Date: 2007-05-03
Language of the case: German
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Notification and obligation to suspend payment of the aid;Formal investigation procedure;Pleas in law;Preliminary review
Procedure: Action for annulment - successful
Origin: Germany

Summary of the Judgment 1. State aid – Planned aid – Examination by the Commission – Accelerated clearance procedure under Commission Notice 92/C 213/03 (Council Regulation No 659/1999; Commission Regulation No 794/2004; Commission Notices 92/C 213/03 and 2004/C 115/01) 2. State aid – Planned aid – Examination by the Commission – Accelerated clearance procedure under Commission Notice 92/C 213/03 (Commission Notice 92/C 213/03) 3. State aid – Planned aid – Examination by the Commission (Council Regulation No 659/1999, Art. 4(1)) 4. State aid – Planned aid – Examination by the Commission (Commission Regulation No 70/2001) 5. Actions for annulment – Grounds – Action against a Commission decision finding State aid incompatible with the common market 6. State aid – Planned aid – Examination by the Commission (Art. 88(2) EC) 1. It is only as of 30 April 2004, the date of publication of the Communication on obsolete documents and of Regulation No 794/2004 implementing Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC], that the Commission’s communication of 2 July 1992 on the accelerated clearance of aid schemes for small and medium-sized enterprises and of amendments of existing schemes has ceased to apply. (see paras 52, 54) 2. Even where a planned aid scheme satisfies all the conditions under the Commission’s communication on accelerated clearance in order for an examination period of 20 working days from the date of notification to apply, it is only ‘in principle’ that the Commission undertakes not to object after that period has expired, thus reserving its full powers ‘to decide’. The criteria which the notified aid schemes must meet so that the Commission does not, in principle, object to them and decides within a period of 20 working days, must be strictly interpreted, since the accelerated clearance procedure is by its nature in derogation from the normal examination procedure for notifications. Where there is doubt as to whether the conditions laid down by the communication are met, the Commission is justified in not using the accelerated clearance procedure. (see paras 56-57, 68) 3. The application, for the purposes of assessing the compatibility of aid with the common market, of criteria laid down by rules which entered into force after the notification of the aid in question is necessarily tantamount to making those rules have a retroactive effect. In those circumstances, the point from which the new rules have effect is inevitably fixed as a date prior to their entry into force, namely that on which the Commission receives the notification. To allow the examination of compatibility to be carried out on the basis of rules which entered into force after the aid was notified would effectively allow the Commission to decide upon the law applicable by reference to the time at which it chooses to undertake such an examination. Such a position would be difficult to reconcile not only with the fact that Article 4(1) of Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC] provides in mandatory terms that the Commission has to examine a notification ‘as soon as it is received’, but also with the requirement that the criteria on the basis of which the Commission assesses the compatibility of aid be transparent and foreseeable, which constitutes the logical reason for the existence of the legislation which it publishes on State aid. To apply a new rule on the compatibility of State aids to aid notified before it entered into force is therefore permissible only if it clearly follows from the terms, objectives or general scheme of the new rules concerned that they are intended to apply retroactively and if the legitimate expectations of those concerned are duly respected. (see paras 102, 107-108) 4. Commission Regulation No 70/2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises could not be used by the Commission to assess the compatibility with the common market of planned aid notified before its entry into force. There is nothing in its wording which authorises such an application either expressly or by implication. Nor were the Member States in a position to predict either its definitive content or the date of its entry into force. Furthermore, such an application would go against the foreseeability which is designed to ensure the publication by the Commission of the texts concerning the criteria which it intends to implement when assessing the compatibility of aid. Finally, to apply that regulation to already-notified aid, whereas, concerning aid implemented without complying with the obligation to notify, the assessment is made by reference to the rules in force at the time the aid was paid, could have the effect of encouraging Member States to free themselves from the obligation to notify, since, by doing so, they would incur no greater risks and penalties than by notifying. (see paras 112, 116-117, 119-120) 5. The possibility of bringing an action for annulment against the Commission’s decision to open the formal investigation procedure in respect of planned aid may not diminish the procedural rights of interested parties by preventing them from seeking the annulment of the final decision and relying in support of their action on defects at any stage of the procedure leading to that decision. The decision to initiate the formal review procedure, even if it produces independent legal effects, is a preparatory step for the final decision which determines the definitive Commission position and in which the Commission may alter the assessment made in the initiating decision. (see para. 127) 6. In order for the notification of planned State aid to be regarded as complete, for the purposes of the preliminary examination phase, it is sufficient for it to contain, either from the outset or once the Member State has replied to questions raised by the Commission, such information as will enable the Commission to form a prima facie opinion of the compatibility of the notified measure with the common market and to decide, in case of doubts in that regard, to initiate the formal investigation procedure. (see paras 133, 139)