Judgment — ECLI:EU:T:1997:165
Date: 1997-11-05
Language of the case: French
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Applications by natural or legal persons;Commission discretion;Direct effect of the final sentence of Article 108(3) TFEU and role of national courts
Procedure: Action for annulment - unfounded
Origin: France

Summary of the Judgment
1. Actions for annulment — Natural or legal persons — Measures of direct and individual con­
cern to them — Commission decision declaring aid to be compatible with the common market
— Complainant undertaking — Right of action — Conditions
(EC Treaty, Arts 93(2) and 173, fourth para.)
2. State aid — Proposed aid — Failure to notify — Implementation before the Commission's
final decision— Prohibition — Direct effect — Scope— Commission's power to order suspen­
sion
(EC Treaty, Arts 92(1) and (3) and 93(3))
3. State aid — Prohibition — Derogations — Commission's discretion — Possibility of adopting
guidelines — Judicial review — Limits
(EC Treaty, Art. 92(3))
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SUMMARY — CASE T-149/95
1. The decision whereby the Commission
declares aid to be compatible with the
common market is of direct and indi­
vidual concern to the undertakings which
instigated the complaint giving rise to the
initiation of the procedure for investigat­
ing the aid and whose views were heard
and which determined the course of that
procedure, provided, however, that their
market position was significantly affected
by the aid measure which the contested
decision left intact to produce its effects.
That is true particularly of an undertak­
ing which is in competition with the
recipient in a sector comprising a
restricted number of undertakings in
business, and which participated with the
latter in one of the tendering procedures
characteristic of that sector which, for it,
was of considerable importance.
2. The infringement by the Member States
of the obligation laid down in Article
93(3) of the Treaty to notify the Commis­
sion of proposed aid and not to imple­
ment any such aid prior to the Commis­
sion's final decision does not have the
effect of rendering those measures auto­
matically incompatible with the common
market. In fact, the prohibition on the
grant of aid, laid down in Article 92(1), is
neither absolute nor unconditional, since
paragraph 3 of that provision grants the
Commission a wide margin of discretion,
in derogation from the general prohibi­
tion, to declare certain aid compatible
with the common market.
The possible incompatibility of aid mea­
sures with the common market may be
established therefore only after comple­
tion of the examination procedure pro­
vided for in Article 93 which it is for the
Commission to implement, and cannot be
an automatic consequence of the omis­
sion by the Member States concerned to
notify the measure in question.
Furthermore, the infringement of such an
obligation is penalized by the direct effect
attributed to Article 93(3), which enables
the undertaking concerned, if appropri­
ate, to bring proceedings before the
national courts. The Commission may,
none the less, for its part, direct the
Member State responsible to suspend
payment of the aid until the procedure
has been completed.
3. Article 92(3) of the Treaty confers on the
Commission a wide discretion to allow
aid by way of derogation from the gen­
eral prohibition laid down in paragraph
(1) of that article, inasmuch as the deter­
mination in such cases of whether State
aid is compatible with the common mar­
ket raises problems which make it neces­
sary to examine and appraise complex
economic facts and conditions. In the
exercise of that discretion the Commis­
sion may lay down for itself guidance for
the exercise of its discretionary powers
by way of documents such as the guide­
lines in question, provided that they con­
tain directions on the approach to be fol­
lowed by that institution and do not
depart from the Treaty rules. Judicial
review must therefore be limited to
checking that the rules on procedure and
the statement of reasons have been com­
plied with, that the facts are materially
accurate, and that there has been no
manifest error of assessment and no mis­
use of powers. It is not for the Court,
therefore, to substitute its economic
assessment for that of the Commission.
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