Order — ECLI:EU:T:2005:405
Date: 2005-11-21
Language of the case: Italian
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: General;Admissibility and examination of applications, forms of order sought and pleas in law;Commission decision following a preliminary review or proceeding to the formal investigation procedure;Limitation periods
Procedure: Action for annulment - inadmissible
Origin: Italy

Summary 
publication in the Official Journal — Internet site) 
Order of the Court of First Instance (Fifth Chamber), 21 November 2005 II - 4769 
Summary of the Order 
1. Actions for annulment — Actionable measures — Meaning — Measures producing binding 
legal effects — Preparatory measures — Not included 
(Art. 230 EC) 
2. State aid — Plans to grant aid — Examination by the Commission — Preliminary review 
and main review — Compatibility of aid with the common market — Difficulties of 
assessment — Commission 's duty to initiate the main review procedure — Possibility of 
II - 4765 
SUMMARY — CASE T-426/04 
engaging in a dialogue with the Member State during the preliminary procedure to 
overcome difficulties — Request to amend the plan notified — Preparatory measure 
(Art. 88(2) and (3) EC; Council Regulation Mo 659/1999, Arts 4 and 6) 
3. Actions for annulment — Time-limits — Point from which time starts to run — Date of 
publication — Date on which a measure came to the knowledge of the applicant — 
Subsidiary criterion — Measures published in the Official Journal in accordance with the 
established practice of the institution — Publication — Definition 
(Art. 230, fifth para., EC) 
4. Procedure — Time-limit for instituting proceedings — Claim barred by lapse of time — 
Unforeseeable circumstances or force majeure — Excusable error 
(Statute of the Court of Justice, Art. 45, second para.) 
1. Only measures the legal effects of which 
are binding on and capable of affecting 
the interests of the applicant by having a 
significant effect on his legal position are 
measures against which proceedings for 
annulment may be brought. In the case 
of acts or decisions drawn up in a 
procedure involving several stages, par­
ticularly an internal procedure, only 
measures definitively laying down the 
position of the institution on the con­
clusion of that procedure may be con­
tested, and not intermediate measures 
intended to pave the way for the final 
decision. 
(see para. 25) 
2. The preliminary stage of the procedure 
established by Article 88(3) EC and 
regulated by Article 4 of Regulation No 
659/1999 is intended to allow the 
Commission a sufficient period of time 
for reflection and investigation for it to 
form a preliminary view of the aid plans 
notified to it, so that it can conclude, 
without any extensive review being 
called for, that they are compatible with 
the Treaty or find that their content 
raises doubts as to their compatibility. 
The formal investigation procedure 
referred to in Article 88(2) EC and 
Article 6 of Regulation No 659/1999, 
which provides the Commission with all 
the information on the case before 
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TRAMARIN v COMMISSION 
adopting its decision, is essential when­
ever the Commission has serious diffi­
culties in determining whether an aid is 
compatible with the common market. 
While its powers are circumscribed as 
far as initiating the formal procedure is 
concerned, the Commission neverthe­
less enjoys a certain margin of discretion 
in identifying and evaluating the circum­
stances of the case in order to determine 
whether or not they present serious 
difficulties. In accordance with the 
objective of Article 88(3) EC and with 
its duty of good administration, the 
Commission may, amongst other things, 
engage in a dialogue with the notifying 
State or with third parties in an endea­
vour to overcome, during the prelimin­
ary procedure , any difficulties 
encountered. 
An examination of the provisions of 
Regulation No 659/1999 shows that 
although the Commission has the power, 
in the context of the formal investigation 
procedure, to require a Member State to 
amend its aid plan in a particular 
manner, on pain of a declaration that 
the plan is incompatible with the com­
mon market, it does not have such 
power during the preliminary investiga­
tion phase and has no other option, 
apart from opening the formal proce­
dure, than to adopt a decision not to 
raise any objections. 
It follows that a letter sent by the 
Commission to the national authorities 
during the preliminary procedure, not­
ing that a difficulty has arisen from the 
examination of the compatibility of the 
proposed plan and merely 'requesting' 
the national authorities to withdraw 
their proposal, as a free choice, forms 
part of that dialogue and does not 
constitute a measure producing binding 
legal effects but a measure which is 
purely preparatory to the final decision 
of the Commission. 
(see paras 27-29, 30-36) 
3. It follows from the wording of the fifth 
paragraph of Article 230 EC that the 
criterion of the date on which the 
applicant became aware of the measure 
as the start of the period for bringing an 
action is subsidiary to the criteria of 
publication or notification of the mea­
sure. 
Failing publication or notification, it is 
for a person who is aware of the 
existence of a decision concerning him 
to request the full text within a reason­
able period but, subject thereto, the 
period for bringing an action can begin 
to run only from the time when the third 
party concerned acquires precise knowl-
II - 4767 
SUMMARY — CASE T-426/04 
edge of the content of the decision in 
question and of the reasons on which it 
is based in such a way as to enable him 
to exercise his right of action. However, 
as regards measures which, according to 
the established practice of the Commu­
nity institution concerned, are published 
in the Official Journal even though that 
publication is not a condition for their 
applicability, the criterion of the date on 
which a measure comes to the knowl­
edge of the applicant is not applicable 
and it is the date of publication which 
makes the period in which to institute 
proceedings start to run. In such cir­
cumstances, the third party concerned 
may legitimately expect that the measure 
in question will be published. 
The fact that the Commission gives third 
parties access to the full text of a 
decision placed on its website, combined 
with the publication of a summary 
notice in the Official Journal enabling 
interested parties to identify the decision 
in question and informing them of this 
possibility of access via the internet, 
must be regarded as publication for the 
purposes of the fifth paragraph of Article 
230 EC. 
(see paras 48-49, 53) 
4. No derogation from the application of 
the Community rules on procedural 
time-limits may be made, save where 
the circumstances are quite exceptional, 
in the sense of being unforeseeable or 
amounting to force majeure, in accor­
dance with the second paragraph of 
Article 45 of the Statute of the Court 
of Justice, or in the case of excusable 
error, since the strict application of those 
rules serves the requirement of legal 
certainty and the need to avoid any 
discrimination or arbitrary treatment in 
the administration of justice. 
(see para. 60) 
II - 4768