Opinion of the Advocate General — ECLI:EU:C:2016:617
Date: 2016-07-28
Language of the case: English
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Greece

Summary — Judgment of the Court (First Chamber), 21 December 2016 1. Appeal — Grounds — Mere repetition of the pleas and arguments put forward before the General Court — Inadmissibility — Challenge to the General Court’s interpretation or application of EU law — Admissibility (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) 2. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Compatibility of aid with the internal market — Difficulties of assessment — Commission's duty to initiate the main review procedure — Serious difficulties — Concept (Arts 108(2) and (3) TFEU; Council Regulation No 659/1999, Art. 4(3)) 3. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding State aid compatible with the internal market without opening the formal investigation procedure — Action by interested parties within the meaning of Article 108(2) TFEU — Identification of the subject-matter of the action — Action designed to safeguard the procedural rights of the persons concerned — Pleas capable of being invoked (Arts 108(2) TFEU and 263, fourth para., TFEU; Council Regulation No 659/1999, Art. 6(1)) 4. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case — No need to specify all the relevant factual and legal elements (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)) 5. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Relationship between the obligation to state reasons and observation of professional secrecy (Arts 296 TFEU and 339 TFEU) 6. EU law — Principles — Right to effective judicial protection — Guaranteed by the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union, Art. 47, first para.) 7. State aid — Concept — Grant of an advantage to the beneficiaries — Criteria for assessment — No obligation for the Commission to define, in advance, the markets concerned by the State intervention at issue (Art. 107(1) TFEU) 1. See the text of the decision. (see para. 26) 2. The procedure under Article 108(2) TFEU is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the internal market. Thus, the Commission may confine itself to the preliminary investigation under Article 108(3) TFEU when taking a decision in favour of aid only if it is able to satisfy itself, after an initial examination, that that aid is compatible with the internal market. If, by contrast, the initial examination leads the Commission to the opposite conclusion or even if it does not enable it to resolve all the difficulties involved in determining whether the aid is compatible with the internal market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Article 108(2) TFEU. In that regard, in accordance with the objective of Article 108(3) TFEU and its duty of sound administration, the Commission may, amongst other things, engage in a dialogue with the notifying State or with third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. However, that power presupposes that the Commission may adjust its position in accordance with the results of the dialogue in which it engages, without that adjustment having to be interpreted, a priori, as establishing the existence of serious difficulties. Accordingly, the Commission may, after an initial examination, lawfully adopt, on the basis of Article 4(2) of Regulation No 659/1999 laying down detailed rules for the application of Article [108 TFEU], a decision whereby, while finding that there is no State aid, it takes note of commitments entered into by the Member State. The fact that the Commission concluded, during the preliminary investigation and prior to negotiation of those commitments, that the measure at issue conferred an advantage on the beneficiary cannot therefore be regarded as serious difficulties requiring initiation of the formal investigation procedure. (see para. 30, 35-37) 3. See the text of the decision. (see para. 45) 4. See the text of the decision. (see paras 46, 47) 5. The obligation laid down in Article 339 TFEU to preserve professional secrecy cannot justify deficiencies in the statement of reasons. The obligation to respect professional secrecy cannot be given so wide an interpretation that the obligation to provide a statement of reasons is thereby deprived of its essential content. (see para. 48) 6. See the text of the decision. (see para. 49) 7. Measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which are to be regarded as constituting an economic advantage that the recipient undertaking would not have obtained under normal market conditions meet the conditions for the conferral of an economic advantage, within the meaning of Article 107(1) TFEU. In that regard, the expression ‘normal market conditions’ is to be interpreted as covering the conditions applying to the economy of a Member State where it does not intervene in favour of certain undertakings. Consequently, there is no general obligation for the Commission to define, prior to any analysis of the possible conferral of an economic advantage in favour of one or several undertakings, the market or markets concerned by the State intervention subject to examination under Article 107 TFEU. As Article 107(1) TFEU is intended to prevent the recipient undertaking from being placed, by means of State resources, in a more favourable financial position than that of its competitors, the Commissionmay directly assess, where it proves to be possible, whether the State measure at issue is capable of placing its recipients in a more favourable financial position than that of their identified competitors or type of competitors. Furthermore, in so far as, for the purposes of classifying State intervention as State aid within the meaning of that provision, the Commission analyses whether that intervention has the effect of favouring its recipient and, therefore, of placing the latter in a more favourable financial position than that of its competitors, there is nothing, in principle, to prevent the Commission from having the possibility, where several State interventions affect the financial position of the same undertaking, of examining them jointly where this proves to be appropriate. (see paras 70, 72-75)