Keywords

Summary



Keywords

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))

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))

Summary

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 objection is taken in complaints on the ground that they constitute State aid contrary to the Treaty and the Commission refuses to initiate the procedure under Article 93(2) of the Treaty (now Article 88(2) EC) because it considers either that the measures complained of do not constitute State aid within the meaning of Article 92 of the Treaty (now, after amendment, Article 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 annulment which the complainant may bring, and not the letter to the complainant.

( see para. 45 )

2. The procedure under Article 93(2) of the Treaty (now Article 88 EC) is essential whenever the Commission has serious difficulty in determining whether aid is compatible with the common market. It follows that when the Commission gives a favourable decision on aid it may restrict itself to the preliminary examination under Article 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 Commission 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 consultations and for that purpose to initiate the procedure under Article 93(2).

It also follows that the Commission is required to initiate the procedure provided 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 examination, 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. Article 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 bearing on the classification of that measure 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 common 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, however, 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 circumstances, 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 concerned, the Commission is not required to carry out an initial examination of those measures within the two-month period envisaged by the case-law. However, where interested third parties submit complaints to the Commission relating to State measures, the Commission is bound, in the context of the preliminary stage referred to in that provision, to conduct a diligent and impartial examination of the complaints in the interests of sound administration 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, Article 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 preliminary examination, the purpose of which is simply to allow the Commission to form an initial opinion on the classification of the measures submitted for its assessment and their compatibility with the common market.

( see paras 102-107 )