Opinion of the Advocate General — ECLI:EU:C:1999:607
Date: 1999-12-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: France

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Decision on State aid adopted after 
annulment of an initial decision on the ground of failure to initiate the procedure under 
Article 93(2) of the Treaty (now Article 88(2) EC) — Decision reaching the same 
conclusions as the annulled decision — Decision not confirmatory in nature 
(EC Treaty, Art. 93(2) (now Art. 88(2) EC) and Art. 173 (now, after amendment, 
Art. 230 EC)) 
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SUMMARY — CASE C-332/98 
2. State aid — Planned aid — Prohibition on implementation prior to a final decision by 
the Commission — Scope — Planned aid considered by the Member State to be 
compatible with the Treaty — Obligation of prior notification and temporary 
suspension of implementation of the aid 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
1. The annulment of a Commission deci­
sion on State aid on the ground of a 
procedural defect, namely the failure to 
initiate the inter partes procedure pro­
vided for by Article 93(2) of the Treaty 
(now Article 88(2) EC), does not ren­
der res judicata the designation by that 
decision of the measure as 'State aid', 
introduced without prior notification 
and therefore 'unlawful'. The Commis­
sion is not bound by the judgment 
annulling that decision except in so far 
as it is required to allow interested 
parties to take part in the detailed 
examination procedure. For the rest, 
the Commission retains its discretion­
ary powers of assessment in regard 
to the substance of the measure in 
question. 
In those circumstances, a subsequent 
decision adopted, in regard to the same 
measure, after initiation of the inter 
partes procedure provided for by Arti­
cle 93(2) of the Treaty does not con­
firm a definitive finding contained in 
an earlier measure, with the result that 
an action brought against that subse­
quent decision is admissible. 
(see paras 19-21) 
2. The final sentence of Article 93(3) of 
the Treaty (now Article 88(3) EC) is 
the means of safeguarding the machin­
ery for review laid down by that article 
to prevent implementation of aid con­
trary to the Treaty. For that reason, 
even if a Member State takes the view 
that an aid measure is compatible with 
the common market, that fact cannot 
entitle it to defy the clear provisions of 
Article 93 of the Treaty. It follows that 
the purpose served by the provision 
introduced by Article 93(3) is not a 
mere obligation to notify but an obli­
gation of prior notification which, as 
such, necessarily implies the suspensory 
effect required by the final sentence of 
Article 93(3). That provision does not 
therefore have the effect of disjoining 
the obligations laid down therein, that 
is to say, the obligation to notify any 
new aid and the obligation to suspend 
temporarily the implementation of that 
aid. 
(see paras 31-32) 
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