Opinion of the Advocate General — ECLI:EU:C:2017:133
Date: 2017-02-16
Language of the case: Greek
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - successful
Origin: Greece

Summary — Judgment of the Court (First Chamber), 31 May 2017 1. State aid — Examination of complaints — Obligations of the Commission — Preliminary examination phase – Obligation to close that phase with a decision – Withdrawal of a decision to take no further action on a complaint regarding alleged unlawful aid — Conditions (Art. 108 TFEU; Council Regulation No 659/1999, Arts 4(2), (3) and (4) and 13(1)) 2. Actions for annulment — Actionable measures — Concept — Measure purely confirmatory of an existing measure — Precluded — Conditions — Measure not containing any new element in relation to the existing measure — Requirement not met (Art. 263 TFEU) 1. Article 13(1) of Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU obliges the Commission, once any additional comments have been lodged by interested parties, or the reasonable period has expired, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, raising no objections, or initiating the formal investigation procedure. Although the Commission may withdraw a decision to take no further action on a complaint regarding alleged unlawful aid in order to remedy illegality affecting that decision, the adoption of a purely confirmatory decision cannot be regarded as being such a withdrawal. An action against a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned because no action has been brought within the prescribed period. Otherwise, the person concerned is entitled to challenge either the confirmed decision, or the confirmatory decision, or both. Moreover, to accept that, in such a situation, the adoption by the Commission of a new decision would mean a ruling that there was no need to adjudicate on the action for annulment brought against the initial decision would be to impede the effectiveness of the judicial review. It would be sufficient for the Commission to decide to take no further action on a complaint lodged by an interested party and then, after that party brought an action, to reopen the preliminary examination stage and repeat those operations as many times as are necessary in order to avoid any judicial review of its actions. The same is true, a fortiori, where the Commission, during the proceedings before the General Court concerning an action for annulment of a decision to take no further action on a complaint, asks that those proceedings be stayed to allow it to re-examine the case, then purely and simply confirms its initial decision. It could be different only if the Commission withdrew a decision to take no further action on a complaint in order to remedy illegality affecting that decision, while stating the nature of the illegality vitiating that decision. (see paras 29, 32, 35, 37-40) 2. See the text of the decision. (see paras 33, 34)