Opinion of the Advocate General — ECLI:EU:C:2002:114
Date: 2002-02-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Spain

Summary of the Judgment 
1. State aid — Planned aid — Notification to the Commission — Prior notice under 
Article 4(6) of Regulation No 659/1999 — Probative value of a fax 
(Council Regulation No 659/1999, Art. 4(6» 
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SUMMARY — CASE C-398/00 
2. State aid — Planned aid — Notification to the Commission — Guide to procedures 
in State aid cases — Prior notice under Article 4(6) of Regulation No 659/1999 — 
Notification to the Directorate-General with responsibility for the matter 
(Council Regulation No 659/1999, Art. 4(6)) 
3. State aid — Examination by the Commission — Prior notice under Article 4(6) of 
Regulation No 659/1999 — Decision to initiate the formal investigation procedure — 
Obligation to give notification of the decision within 15 working days following receipt 
thereof — Methods for calculating the time-limit 
(Art. 254(3) EC, Council Regulation No 659/1999, Art. 4(6)) 
1. The probative value of a fax depends 
both on the degree of formality that the 
applicable provisions require for the 
act in question and the conditions 
governing the use of the fax trans­
mission process, bearing in mind that, 
as a rule, the binding legal effects of the 
act are in no way affected by the fact 
that it is sent by fax. Thus, where the 
applicable provisions require a particu­
lar degree of procedural formality for 
certain acts, consideration must be 
given to whether sending such acts by 
fax is compatible with those provi­
sions. 
As regards prior notice under 
A r t i c l e 4 ( 6 ) of R e g u l a t i o n 
No 659/1999, the provisions appli­
cable to pre-litigation proceedings for 
examining the compatibility with the 
Treaty of State aid do not require any 
particular procedural formality. Unlike 
the initial step of notifying new aid, 
receipt of which must, under Article 2 
of the Regulation, be acknowledged by 
the Commission to the Member State 
in question, prior notice of implemen­
tation is not subject to any require­
ments beyond those relating to the 
various stages of the pre-litigation 
procedure before the Commission. 
(see paras 21-23) 
2. The Commission's Guide to pro­
cedures in State aid cases requires only 
that initial notification of aid from 
Member States be communicated to 
the General-Secretariat of the Commis­
sion. However, the Guide provides at 
paragraph 24 that replies to requests 
for further information from the Direc­
torate-General concerned 'should be 
sent directly to' that Directorate-Gen­
eral. It follows that the same must be 
true of prior notice under Article 4(6) 
of Regulation No 659/1999, which is 
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SPAIN v COMMISSION 
given in the context of the ongoing 
exchange of information, needs to 
reach the department responsible for 
the file as soon as possible. 
(see para. 26) 
3. Article 254(3) EC clearly states that 
'decisions ... shall be notified to those 
to whom they are addressed and shall 
take effect upon such notification'. 
Therefore, a decision whose purpose 
is to prevent the implementation of 
planned aid by a Member State cannot 
take effect before it becomes enforce­
able against that Member State, which 
is on the date of its notification to that 
State. Article 4(6) of Regulation 
No 659/1999, therefore, which relates 
to decisions on prior notice by a State 
taken by the Commission 'within a 
period of 15 working days' following 
receipt of the notice, cannot be inter­
preted as meaning that the mere adop­
tion of such decisions interrupts that 
period, irrespective of when they are 
notified. 
(see paras 31-33) 
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