Keywords

Summary



Keywords

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))

2. State aid Planned aid Review by the Commission Preliminary stage Duration Artificial prolongation by Commission by asking new questions unnecessary 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))

Summary

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 Article 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 procedure for reviewing State aid under Article 93(3) of the Treaty (now Article 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 compatibility 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 preliminary stage of the procedure for examining 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 this stage of the procedure. That objective, which is to offer Member States the legal certainty they require by informing them quickly as to the compatibility with the Treaty of a particular aid, which may be a matter of urgency, would be jeopardised if the period were to be regarded as merely indicative. Moreover, the legal uncertainty that would result in could be aggravated if the preliminary examination phase were artificially prolonged.

The fact that the Commission may in some cases voluntarily impose a restriction 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 Member 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 preliminary examination having been set at two months in view of the interest of the Member States in obtaining clarification quickly in spheres where there may be an urgent need to take action, it follows that the preliminary examination 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 interests to do so.

( see paras 73, 75-78 )

4. In light of the procedural rules mentioned in Community case-law concerning the existence of a reasonable period of time for reflection and investigation 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 planned aid; the second is that the Commission must not initiate the contentious procedure under Article 93(2) of the Treaty in the two months following complete notification of the aid. It is 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 )