Judgment — ECLI:EU:T:2000:123
Date: 2000-05-10
Language of the case: Portuguese
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: General;Compensation for the costs connected with a public service mission;Commission decision following a preliminary review or proceeding to the formal investigation procedure
Procedure: Action for annulment - successful;Action for annulment - inadmissible
Origin: Portugal

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Measure open to challenge by the 
author of a complaint alleging State aid — Commission letter informing the 
complainant of its refusal to initiate the procedure provided for in Article 93(2) of 
the Treaty (now Article 88(2) EC) — Not an actionable measure 
(EC Treaty, Arts 92 and 173 (now, after amendment, Arts 87 and 230 EC) and 
Art. 93(2) (now Art. 88(2) EC)) 
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2. State aid — Planned aid — Review by the Commission — Preliminary stage and inter 
partes stage — Compatibility of aid with the common market — Difficulties in 
assessing compatibility — Commission's obligation to initiate the inter partes 
procedure 
(EC Treaty, Art. 92(1) (now, after amendment, Arts 87(1) EC) and Art. 93(2) and (3) 
(now Art. 88(2) and (3) EC)) 
3. State aid — Definition — Measures intended to offset the cost of public service tasks 
assumed by an undertaking — Included 
(EC Treaty Art. 90(2) (now Art. 86 (2) EC) and Art. 92(1) (now, after amendment, 
Art. 87(1) EC)) 
4. State aid — Planned aid — Review by the Commission — Preliminary stage and inter 
partes stage — Compatibility of aid with the common market — Difficulties in 
assessing compatibility — Commission's obligation to initiate the inter partes 
procedure — Request for further information — Effect 
(EC Treaty Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(2) and (3) 
(now Art. 88(2) and (3) EC)) 
5. State aid — Planned aid — Review by the Commission — Preliminary stage and inter 
partes stage — Compatibility of aid with the common market — Difficulties in 
assessing compatibility — Commission's obligation to initiate the inter partes 
procedure — Preliminary examination of State measures which have not been notified 
taking far in excess of the time normally required for an initial examination 
(EC Treaty Art. 92(1) (now, after amendment, Art. 87(1)) and Art. 93(2) and (3) (now 
Art. 88 (2) and (3) EC)) 
1. Decisions adopted by the Commission 
in the area of State aid are always 
addressed to the Member States. That 
is also the case where such decisions 
concern State measures to which objec­
tion is taken in complaints on the 
ground that they constitute State aid 
contrary to the Treaty and the Com­
mission refuses to initiate the proce­
dure under Article 93(2) of the Treaty 
(now Article 88(2) EC) because it con­
siders either that the measures com­
plained of do not constitute State aid 
within the meaning of Article 92 of the 
Treaty (now, after amendment, Arti­
cle 87 EC) or that they are compatible 
with the common market. Where the 
Commission adopts such a decision 
and proceeds, in accordance with its 
duty of sound administration, to 
inform the complainants of its decision, 
it is the decision addressed to the 
Member State which must form the 
subject-matter of any action for annul­
ment which the complainant may 
bring, and not the letter to the com­
plainant. 
(see para. 45) 
2. The procedure under Article 93(2) of 
the Treaty (now Article 88 EC) is 
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SIC V COMMISSION 
essential whenever the Commission has 
serious difficulty in determining whe­
ther aid is compatible with the com­
mon market. It follows that when the 
Commission gives a favourable deci­
sion on aid it may restrict itself to the 
preliminary examination under Arti­
cle 93(3) only if it is able to satisfy 
itself after an initial examination that 
the aid is compatible with the common 
market. If, on the other hand, the 
initial examination leads the Commis­
sion to the opposite conclusion or if it 
does not enable it to resolve all the 
difficulties involved in determining 
whether the aid is compatible with 
the common market, it is under a duty 
to carry out all the requisite consulta­
tions and for that purpose to initiate 
the procedure under Article 93(2). 
It also follows that the Commission is 
required to initiate the procedure pro­
vided for in Article 93(2) of the Treaty 
if an initial examination does not 
enable it to resolve all the difficulties 
raised by the question whether a State 
measure submitted to it for review 
constitutes aid for the purposes of 
Article 92(1) of the Treaty (now, after 
amendment, Article 87(1) EC) unless, 
in the course of that initial examina­
tion, the Commission is able to satisfy 
itself that the measure at issue is in any 
event compatible with the common 
market, even if it is aid. 
(see paras 71-72) 
3. Anicie 92(1) of the Treaty (now, after 
amendment, Article 87(1) EC) does not 
distinguish between measures of State 
intervention by reference to their 
causes or aims but defines them in 
relation to their effects. It follows that 
the concept of aid is an objective one, 
the test being whether a State measure 
confers an advantage on one or more 
particular undertakings. The fact that a 
financial advantage is granted to an 
undertaking by the public authorities in 
order to offset the cost of public service 
obligations which that undertaking is 
claimed to have assumed has no bear­
ing on the classification of that mea­
sure as aid within the meaning of 
Article 92(1) of the Treaty, although 
that aspect may be taken into account 
when considering whether the aid in 
question is compatible with the com­
mon market under Article 90(2) of the 
Treaty (now Article 86(2) EC). 
(see paras 83-84) 
4. The mere fact that discussions took 
place between the Commission and the 
Member State concerned during the 
preliminary examination stage, and 
that, in that context, the Commission 
asked for additional information about 
the measures submitted for its review, 
cannot in itself be regarded as evidence 
that the Commission was confronted 
with serious difficulties of assessment 
necessitating initiation of the procedure 
under Article 93(2) of the Treaty (now 
Article 88(2) EC). That does not, how-
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SUMMARY — CASE T-46/97 
ever, exclude the possibility that the 
content of the discussions between the 
Commission and the Member State 
concerned during that stage of the 
procedure may, in certain circum­
stances, be capable of revealing the 
existence of such difficulties. 
(see para. 89) 
5. The fact that the time spent on an 
initial examination under Article 93(3) 
of the Treaty (now Article 88(3) EC) 
considerably exceeds the time usually 
taken may, with other factors, justify 
the conclusion that the Commission 
encountered serious difficulties of 
assessment necessitating initiation of 
the procedure under Article 93(2) 
of the Treaty. 
It is true that in a case where, as here, 
the disputed State measures were not 
notified by the Member State con­
cerned, the Commission is not required 
to carry out an initial examination of 
those measures within the two-month 
period envisaged by the case-law. How­
ever, where interested third parties 
submit complaints to the Commission 
relating to State measures, the Com­
mission is bound, in the context of the 
preliminary stage referred to in that 
provision, to conduct a diligent and 
impartial examination of the com­
plaints in the interests of sound admin­
istration of the fundamental rules of 
the Treaty relating to State aid. It 
follows, in particular, that where the 
Commission has initiated a preliminary 
investigation into State measures in 
relation to which there has been a 
complaint under Article 92(1) of the 
Treaty (now, after amendment, Arti­
cle 87(1) EC), it cannot prolong that 
investigation indefinitely. 
Delays of more than 39 months after 
the first complaint was lodged and 
nearly 33 months after the complainant 
finalised its complaint far exceed the 
period normally required for a preli­
minary examination, the purpose of 
which is simply to allow the Commis­
sion to form an initial opinion on the 
classification of the measures submit­
ted for its assessment and their com­
patibility with the common market. 
(see paras 102-107) 
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