Opinion of the Advocate General — ECLI:EU:C:2000:396
Date: 2000-07-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Austria

Summary of the Judgment 
1. State aid — Planned aid — Review by the Commission — Preliminary stage — 
Extent of the information required for notification of a plan to grant aid 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
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SUMMARY — CASE C-99/98 
2. State aid — Planned aid — Review by the Commission — Preliminary stage — 
Duration — Artificial prolongation by Commission by asking new questions unne­
cessary to its review of the aid 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
3. State aid — Planned aid — Review by the Commission — Preliminary stage — 
Duration — Mandatory nature of two-month time-limit 
(EC Treaty, Arts 93(3) and 175 (now Arts 88(3) EC and 232 EC) and Art. 173 (now, 
after amendment, Art. 230 EC)) 
4. State aid •—• Existing aid and new aid — Conversion of notified aid into existing 
aid — Conditions — Commission's right of objection — None 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
1. For the purposes of the preliminary 
stage of the procedure for reviewing 
State aid under Article 93(3) of the 
Treaty (now Article 88(3) EC), in order 
for a notification to be regarded as 
complete and thus cause leading to the 
initiation of the contentious procedure 
the two-month period under Arti­
cle 93(2) of the Treaty, it is sufficient 
if it contains, either from the beginning 
or once the Member State has replied 
to questions raised by the Commission, 
such information as will enable the 
Commission to form a prima facie 
opinion of the compatibility of the aid 
with the Treaty. 
(see paras 53, 56) 
2. At the preliminary stage of the proce­
dure for reviewing State aid under 
Article 93(3) of the Treaty (now Arti­
cle 88(3) EC), the Commission may 
not, by means of sending letters asking 
questions the answers to which are not 
necessary in order to enable it to form a 
prima facie opinion of the compatibil­
ity of the whole of the proposed aid 
with the Treaty, artificially extend that 
stage of the procedure in order to gain 
extra time in which to consider other 
aspects of the plan to grant aid. 
(see paras 62, 65) 
3. By drawing guidance from Articles 173 
(now, after amendment, Article 230 
EC) and 175 of the Treaty (now 
Article 232 EC) in order to establish 
how much time for reflection the 
Commission may take in the prelimin­
ary stage of the procedure for examin­
ing State aid under Article 93(3) of the 
Treaty (now Article 88(3) EC), and by 
thus assessing the maximum duration 
of that period at two months, the Court 
intended to remove a legal uncertainty 
manifestly contrary to the objective of 
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AUSTRIA V COMMISSION 
this stage of the procedure. That objec­
tive, which is to offer Member States 
the legal certainty they require by 
informing them quickly as to the com­
patibility with the Treaty of a particu­
lar aid, which may be a matter of 
urgency, would be jeopardised if the 
period were to be regarded as merely 
indicative. Moreover, the legal uncer­
tainty that would result in could be 
aggravated if the preliminary examina­
tion phase were artificially prolonged. 
The fact that the Commission may in 
some cases voluntarily impose a restric­
tion on its own margin of action, so as 
to take action within a period of less 
than two months does not imply that it 
may, without the consent of the Mem­
ber State concerned, set a time-limit of 
more than two months and thus 
deprive the Member State of the 
advantages of the time-limits laid down 
by Community law. 
Moreover, the time-limit for the pre­
liminary examination having been set 
at two months in view of the interest of 
the Member States in obtaining clarifi­
cation quickly in spheres where there 
may be an urgent need to take action, it 
follows that the preliminary examina­
tion of a planned aid must, in principle, 
be regarded as an urgent matter, unless 
the Member State concerned expressly 
agrees to an extension of the time 
allowed for that examination. 
Lastly, the fact that the Member State 
concerned may have failed to answer 
the Commission's questions promptly 
does not mean that it may not avail 
itself of the two-month time-limit. 
Article 93 of the Treaty does not 
impose any obligation upon Member 
States other than to notify the aid plan 
in good time and to refrain from 
putting the planned aid into effect until 
the procedure under Article 93(2) has 
resulted in a final decision. The Treaty 
does not also require the Member 
States to reply swiftly to any requests 
for further information made by the 
Commission. It is merely in their inter­
ests to do so. 
(see paras 73, 75-78) 
4. In light of the procedural rules men­
tioned in Community case-law con­
cerning the existence of a reasonable 
period of time for reflection and inves­
tigation by the Commission at the 
preliminary stage of the procedure for 
reviewing State aid under Article 93(3) 
of the Treaty (now Article 88(3) EC), 
the conversion of notified aid into 
existing aid is subject to two conditions 
only, which are sufficient and both 
necessary. The first is that the Member 
State must give the Commission prior 
notice of implementation of the plan­
ned aid; the second is that the Com­
mission must not initiate the conten­
tious procedure under Article 93(2) of 
the Treaty in the two months following 
complete notification of the aid. It is 
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SUMMARY — CASE C-99/98 
that second condition, and not any 
right of objection that is referred to in 
paragraph 5 of the judgment in Case 
120 /73 Lorenz by the words 'during 
the Commission's silence'. 
To accord the Commission a right of 
objection would amount to adding to 
the procedural system governing State 
aid a third condition quite contrary to 
that system, which would re-introduce 
into a mechanism designed to provide 
legal certainty, legal uncertainty as to 
the form and legal effects of, and the 
time-limit applicable to such a right of 
objection, and would create doubt as to 
the date from which the aid came 
under the system governing existing 
aid. It follows that the Commission has 
no right of objection. 
(see paras 84-85) 
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