Judgment — ECLI:EU:T:2002:111
Date: 2002-04-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Statement of reasons;General;Notification and obligation to suspend payment of the aid;Formal investigation procedure;Existing aid and new aid;Commission decision following a preliminary review or proceeding to the formal investigation procedure
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Provisional data;Gibraltar

Summary of the Order 
1. Applications for interim measures — Conditions governing admissibility — Admis­
sibility of the main application — Application for annulment of a Commission 
decision to initiate a formal investigation procedure in respect of an aid in the course of 
implementation — Decision producing legal effects — Main application not prima 
facie inadmissible 
(Arts 88(2) EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, 
Art. 104(1)) 
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2. State aid — Commission decision to initiate a formal investigation procedure in 
respect of an aid in the course of implementation — Decision capable of being the 
subject of an action for annulment and of an application for interim measures — 
judicial review — Need to demonstrate a manifest error of assessment 
(Art. 88(2) EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 
3. Applications for interim measures — Suspension of operation of a measure — 
Interim relief — Conditions for granting — Urgency — Assessment criteria — 
Decision to adjudicate on the substance of the action under an expedited procedure 
within the meaning of Article 76a of the Rules of Procedure of the Court of First 
Instance — Not relevant 
(Rules of Procedure of the Court of First Instance, Arts 76a and 104(2)) 
4. Applications for interim measures — Suspension of operation of a measure — 
Interim relief — Conditions for granting — Serious and irreparable damage — 
Standard of proof — Harm dependent on the occurrence of future and uncertain 
events 
(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, 
Art. 104(2)) 
5. Applications for interim measures — Suspension of operation of a measure — 
Interim relief — Conditions for granting — Balancing of all the interests 
involved — Commission decision to initiate a formal investigation procedure in 
respect of an aid — Exceptional circumstances necessary to justify the grant of interim 
measures 
(Arts 88(2) EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, 
Art. 104(2); Council Regulation No 659/1999) 
1. A decision adopted by the Commission 
to initiate a formal investigation pro­
cedure in respect of an aid measure in 
the course of implementation produces 
specific legal effects and may, there­
fore, be challenged immediately before 
the Community judicature, without 
having to await the adoption of the 
final decision concluding that proce­
dure. An interested party who initiates 
such an action may apply for interim 
relief. 
(see para. 59) 
2. A decision to initiate a formal investi­
gation procedure in respect of a State 
aid measure which has already been 
implemented, where a Member State 
wishes to continue to apply it pending 
a definitive decision by the Commis­
sion, may always be simultaneously 
challenged before the Community judi­
cature and be the subject of an appli­
cation for interim relief, despite the 
absence of any injunction to suspend 
the measure at issue. However, review 
by the Community judicature in the 
context of such an application must be 
precisely circumscribed in order to 
ensure that the Commission is not 
prevented from carrying out the 'pre­
ventive control' provided for in the 
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GOVERNMENT OF GIBRALTAR v COMMISSION 
Treaty. Such circumscription would 
seem even more appropriate since the 
Commission has no discretion as 
regards whether to initiate a formal 
investigation procedure when it 
encounters serious difficulties in classi­
fying a State measure and determining 
its compatibility with the common 
market. 
In view of the broad discretion which 
the Commission must enjoy in so far as 
concerns the provisional assessment of 
the facts and elements of relevant 
national law, the applicant must, prima 
facie, prove that a manifest error of 
assessment has occurred in order ulti­
mately to obtain the annulment of a 
decision finding the existence of serious 
doubts as to whether a State measure 
constitutes new, rather than existing, 
aid. 
(see paras 76-77, 79) 
3. The mere fact that the Court of First 
Instance decided, on application by the 
Commission, to adjudicate on the sub­
stance of the action under an expedited 
procedure cannot influence either the 
assessment of urgency or, should it 
prove necessary, the balancing of the 
interests concerned by the judge hear­
ing the application for interim mea­
sures. The relevant criteria of the 
existence of a 'particular urgency', 
which, under Article 76a(1) of the 
Rules of Procedure of the Court of 
First Instance, is to be satisfied if the 
Court is to adjudicate under an expe­
dited procedure, are only partly the 
same as those which govern the assess­
ment of the condition of urgency that 
must be satisfied before the judge 
hearing an application for interim 
measures is able to adopt such mea­
sures. 
(see para. 94) 
4. The urgency of an application for 
interim measures must be assessed in 
relation to the necessity for an order 
granting relief in order to prevent 
serious and irreparable damage to the 
party requesting the interim measure. 
It is for the party who pleads serious 
and irreparable damage to prove its 
existence. It does not have to be 
established with absolute certainty that 
the harm is imminent; it is sufficient 
that the harm in question, particularly 
where it depends on the occurrence of a 
number of factors, should be foresee­
able with a sufficient degree of prob­
ability. 
Damage which is entirely hypothetical 
in so far as it is based on the occurrence 
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SUMMARY — JOINED CASES T-195/01 R AND T-207/01 R 
of future and uncertain events cannot 
justify granting the interim measures. 
(see paras 95-96, 101) 
5. The mere fact that a Commission 
decision to initiate a formal investiga­
tion procedure in respect of aid may 
give rise to uncertainty as to the legality 
of implementing a non-notified State 
measure does not suffice to justify the 
balance of interests being opposed to 
such a measure being maintained in 
force. 
The Community interest on behalf of 
which the Commission exercises its 
fundamental role, under Article 88 EC, 
of ensuring that the common market is 
not distorted by aid that has not been 
notified and/or that is incompatible 
with the common market must, except 
in truly exceptional circumstances, pre­
vail, at the stage of the adoption of a 
decision to initiate the formal investi­
gation procedure, over the interest 
which a Member State may have in 
obtaining an interim decision prevent­
ing the Commission from examining, 
within the framework of Arti­
cle 88 (2 ) EC and R e g u l a t i o n 
No 659/1999, whether a specific mea­
sure constitutes new aid and, if so, 
whether it is incompatible with the 
common market. 
It is difficult to envisage the circum­
stances which, in the absence of a 
particularly serious prima facie case 
and manifest urgency, would justify 
suspension by the judge hearing an 
application for interim measures of a 
decision which, in regard to a non-
notified State measure that has already 
been implemented, is limited to initiat­
ing a formal investigation procedure. 
(see paras 109-110, 115) 
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