Judgment — ECLI:EU:T:2003:316
Date: 2003-11-27
Language of the case: Italian
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: General;Formal investigation procedure;Limitation periods
Procedure: Action for annulment - unfounded
Origin: Italy

Summary of the Judgment 
1. Actions for annulment — Time-limit — Starting point — Date of publication — 
Date of becoming aware of the measure — Subsidiary character 
(Art. 230, fifth para., EC) 
II - 5015 
SUMMARY — CASE T-190/00 
2. Actions for annulment — Actionable measures — Definition — Measures with 
binding legal effects — Preparatory measures — Excluded 
(Art. 230 EC) 
3. Actions for annulment — Actionable measures — Measures with binding legal 
effects — Commission decision concluding the formal review procedure for examining 
State aid, provided for in Article 88(2) EC — Possibility of challenging the 
classification as new aid, even where there was no such challenge by an action against 
the decision to open the formal review procedure 
(Arts 88(2) EC and 230 EC) 
4. State aid — Prohibition — Derogations — Aids capable of benefiting from the 
derogation under Article 87(3)(c) EC — Operating aid — Excluded 
(Art. 87(3)(c) EC) 
5. State aid — Planned aid — Review by the Commission — Compliance with a 
reasonable time-limit — Principle of good administration 
(Council Regulation No 659/1999, Art. 7(6)) 
1. According to the very wording of the 
fifth paragraph of Article 230 EC, the 
criterion of the day on which the 
contested decision came to the knowl­
edge of the applicant as the start of the 
period for instituting proceedings for 
annulment is subsidiary to the criteria 
of publication or notification. 
Since the contested decision, not noti­
fied to the applicant, was published, it 
is the date of publication that is the 
start of the period for the applicant to 
institute proceedings, and not the date 
on which it might have learned of the 
decision. 
(see paras 29-31) 
2. Measures or decisions against which 
proceedings for annulment may be 
brought under Article 230 EC are 
measures producing legal effects which 
are binding on and capable of affecting 
the interests of the applicant by having 
a significant effect on his legal position. 
In the case of acts or decisions drawn 
up in several stages, in particular 
following an internal procedure, in 
principle only measures definitively 
laying down the position of the insti­
II - 5016 
REGIONE SICILIANA v COMMISSION 
tution upon the conclusion of that 
procedure may be contested, and not 
provisional measures intended to pave 
the way for the final decision. 
(see paras 43-44) 
3. A final decision adopted by the Com­
mission in order to conclude the formal 
review procedure for State aid provided 
for in Article 88(2) EC constitutes a 
measure which may be contested on 
the basis of Article 230 EC. Such a 
decision produces effects which are 
binding on and capable of affecting 
the interests of the parties concerned, 
since it concludes the procedure in 
question and definitively decides 
whether the measure under review is 
compatible with the rules applying to 
State aid. Accordingly, interested 
parties are always able to contest such 
a decision and must, in that context, be 
able to challenge the various elements 
which form the basis for the position 
definitively adopted by the Commis­
sion. 
That right is independent of whether, 
despite its preparatory nature, the 
decision to initiate the formal review 
procedure gives rise to legal effects 
which may be the subject-matter of an 
action for annulment. Such right can­
not have the consequence of diminish­
ing the procedural rights of interested 
parties by preventing them from chall­
enging the final decision and relying in 
support of their action on defects at 
any stage of the procedure leading to 
that decision. 
The body dispensing the aid must 
therefore have the right to bring an 
action for the annulment of the 
decision in its entirety, including the 
classification of aid as new aid, irre­
spective of whether or not it challenged 
that aspect of the decision to open the 
formal investigation procedure in 
respect of the aid in question. 
(see paras 45-47, 49) 
4. Operating aid, that is to say, aid 
intended to relieve an undertaking of 
the expenses which it would normally 
have had to bear in its day-to-day 
management or its usual activities, 
does not in principle fall within the 
scope of Article 87(3) EC. According to 
the relevant case-law, the effect of such 
aid is in principle to distort compe­
tition in the sectors in which it is 
II - 5017 
SUMMARY — CASE T-190/00 
granted, whilst being incapable, by its 
very nature, of achieving any of the 
objectives of the exceptions provided 
for in the EC Treaty. 
(see para. 130) 
5. It is a principle of good administration 
that the Commission must act within a 
reasonable time in adopting decisions 
following administrative proceedings 
relating to competition policy. Whether 
or not the duration of an adminis­
trative procedure is reasonable must be 
determined in relation to the particular 
circumstances of each case, and 
especially its context, the various pro­
cedural stages to be followed by the 
Commission, the complexity of the 
case and its importance for the various 
parties involved. 
The fact that Article 7(6) of Regulation 
No 659/1999 laying down detailed 
rules for the application of Article 93 
EC provides that the Commission shall 
as far as possible endeavour to adopt a 
decision within a period of 18 months 
from the opening of the formal pro­
cedure for examining an aid is not 
sufficient to render a 22-month period 
for adopting such a decision unreas­
onable. 
(see paras 136, 139) 
II - 5018