Opinion of the Advocate General — ECLI:EU:C:2016:827
Date: 2016-10-27
Language of the case: Dutch
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - successful
Origin: Netherlands

Summary — Judgment of the Court (First Chamber), 15 March 2017 1. State aid — Existing aid — Permanent review by the Commission with the Member States — Assessment by the Commission of an aid scheme’s compatibility with the internal market — Proposal of appropriate measures to be adopted by the Member States in order to remedy an incompatibility — Acceptance by the Member States — Decision by the Commission to render those measures binding — Action by the beneficiary of the aid — Possibility of challenging the Commission’s assessment of the incompatibility of the aid (Art. 108(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 659/1999, Arts 18 and 19(1)) 2. Actions for annulment — Actionable measures — Preparatory measures — Not included — Letter from the Commission expressing doubts as to the compatibility of an aid with the internal market and proposing appropriate measures — Act constituting a step in the preparation of a decision finding that the aid is incompatible with the internal market — Not included (Art. 263 TFEU; Council Regulation No 659/1999, Art. 17) 3. State aid — Commission decision finding aid incompatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits (Arts 107 TFEU and 108 TFEU) 4. State aid — Existing aid — Permanent review by the Commission with the Member States — Measures proposed to the Member States in the context of that examination — Acceptance by the Member States — Binding effect — Conditions (Art. 108(1) TFEU; Council Regulation No 659/1999, Art. 19(1)) 1. A decision by which the Commission renders binding the commitments accepted by a Member State in order to ensure that an existing aid scheme is compatible with the internal market necessarily supposes that the Commission first assessed whether the aid scheme in question was compatible with the internal market and, after taking into consideration the information provided by the Member State concerned, concluded that that scheme was not, or was no longer, compatible with the internal market and that, consequently, appropriate measures were necessary in order to remedy that incompatibility. The assessment that the Commission thus carried out and the conclusion that it drew from that assessment cannot be excluded from review by the EU judicature without undermining the right to effective judicial protection, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, of the beneficiaries of the existing aid scheme. A decision by which the Commission renders binding the commitments accepted by a Member State in order to ensure that an existing aid scheme is compatible with the internal market pursuant to Article 18 of Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU, in conjunction with Article 19(1) of that regulation, in that it is based on the preliminary finding that the existing aid scheme is incompatible with the internal market, is liable to harm the interests of the beneficiaries of that scheme. The right to effective judicial protection of the beneficiaries of an existing aid scheme therefore implies that, in the case of an action brought against such a decision, those beneficiaries may also contest the Commission’s assessment of that scheme and its conclusion that that scheme is not compatible with the internal market and that, consequently, appropriate measures are necessary in order to remedy that incompatibility. That conclusion is not called into question by the argument that the assessment at issue is not definitive. Admittedly, the procedure for reviewing existing aid schemes under Article 108(1) TFEU does not lead to a formal finding that an aid scheme is incompatible with the internal market. Nevertheless, the conclusion that the existing aid scheme is incompatible with the internal market and the proposal of appropriate measures that that conclusion necessarily entails produces, once the Commission has recorded the acceptance of those measures by the Member State concerned, the same legal effects as those of such a formal finding as regards that Member State. (see paras 38-40, 43, 50-52) 2. Intermediate measures whose aim is to prepare the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment. An action for annulment against measures expressing a provisional opinion of the Commission might make it necessary for the EU judicature to arrive at a decision on questions on which the institution concerned has not yet had an opportunity to state its position and would as a result anticipate the arguments on the substance of the case, confusing different procedural stages both administrative and judicial. Likewise, an intermediate measure is not capable of forming the subject matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection. That is the case as regards a letter from the Commission pursuant to Article 17 of Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU, expressing doubts as to the compatibility of that aid with the internal market and proposing appropriate measures, since that letter constitutes a first step in the preparation of a decision finding the aid scheme incompatible with the internal market, and those doubts were confirmed by that decision. Thus, an applicant may not be prevented from invoking the unlawfulness of the assessment contained in that letter in support of their action against that decision. (see paras 44-48) 3. See the text of the decision. (see para. 53) 4. The appropriate measures that the Commission proposes under Article 108(1) TFEU, in so far as they are accepted by a Member State, are binding on that Member State, as provided in the second sentence of Article 19(1) of Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU. However, that acceptance produces legal effects only if it is notified to the Commission and the latter records it and informs the Member State thereof, in accordance with the first sentence of Article 19(1) of that regulation. (see para. 63)