Opinion of the Advocate General — ECLI:EU:C:2010:726
Date: 2010-12-02
Language of the case: German
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Belgium

Summary of the Judgment 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the common market without initiating the formal review procedure – Actions brought by interested parties for the purposes of Article 88(2) EC – Admissibility – Conditions (Arts 88(2) EC and 230, fourth para, EC; Council Regulation No 659/1999, Art. 1(h), 4(3) and 6(1)) 2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the common market without initiating the formal review procedure – Actions brought by interested parties for the purposes of Article 88(2) EC – Identification of the subject‑matter of the action (Art. 88(2) EC and 230, fourth para., EC; Council Regulation No 659/1999, Arts 1(h), 4(3) and 6(1)) 3. State aid – Planned aid – Examination by the Commission – Preliminary review and main review – Compatibility of the aid with the common market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Concept of ‘doubts’ – Objective nature (Art. 88(2) EC; Council Regulation No 659/1999, Arts 4(3), (4) and (5), and 6(1)) 1. In the field of State aid, the lawfulness of a Commission decision not to raise objections, adopted under Article 4(3) of Regulation No 659/1999, laying down detailed rules for the application of Article 88 EC, depends on whether there are doubts as to the compatibility of the aid with the common market. Since such doubts must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such a decision. If the beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 are to be able to ensure that those guarantees are respected, it must be possible for them to challenge before the Union judicature the decision not to raise objections. (see para. 54) 2. In the field of State aid, an applicant challenging the Commission’s decision not to initiate the formal investigation procedure may rely on any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified ought to have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, change the subject-matter of the action or the conditions for its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999, laying down detailed rules for the application of Article 88 EC. It is not for the Union judicature to interpret an action brought by an applicant challenging exclusively the substance of a decision appraising the aid as such as one seeking, in fact, to safeguard the applicant’s procedural rights pursuant to Article 88(2) EC and Article 6(1) of Regulation No 659/1999, if the applicant has not expressly raised a plea to that effect. In such a case, the interpretation of the plea would lead to a reclassification of the subject‑matter of the action. (see paras 55, 58) 3. It follows from Article 4(4) of Regulation No 659/1999, laying down detailed rules for the application of Article 88 EC, that if, following the preliminary examination, the Commission finds that the planned aid raises doubts as to its compatibility with the common market, it is required to adopt a decision initiating the formal investigation procedure under Article 88(2) EC and Article 6(1) of that regulation. The concept of ‘doubts’ referred to in Article 4(4) of Regulation No 659/1999 being objective, their existence must be sought not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied. With regard to the length and circumstances of the preliminary examination procedure, while it is true that a period exceeding the two-month period provided for in Article 4(5) of Regulation No 659/1999 and the number of requests for information addressed to the Member State concerned do not of themselves support the conclusion that the Commission ought to have initiated the formal investigation procedure, those elements may none the less constitute evidence that the Commission may have had doubts regarding the compatibility of the aid at issue with the common market. (see paras 77, 79, 81)