Keywords

Summary



Keywords

1. Actions for annulment — Time-limit — Starting point — Date of publication — Date of becoming aware of the measure — Subsidiary character — (Art. 230, fifth para., EC)

2. Actions for annulment — Actionable measures — Definition — Measures with binding legal effects — Preparatory measures — Excluded — (Art. 230 EC)

3. Actions for annulment — Actionable measures — Measures with binding legal effects — Commission decision concluding the formal review procedure for examining State aid, provided for in Article 88(2) EC — Possibility of challenging the classification as new aid, even where there was no such challenge by an action against the decision to open the formal review procedure — (Arts 88(2) EC and 230 EC)

4. State aid — Prohibition — Derogations — Aids capable of benefiting from the derogation under Article 87(3)(c) EC — Operating aid — Excluded — (Art. 87(3)(c) EC)

5. State aid — Planned aid — Review by the Commission — Compliance with a reasonable time-limit — Principle of good administration — (Council Regulation No 659/1999, Art. 7(6))

Summary

1. According to the very wording of the fifth paragraph of Article 230 EC, the criterion of the day on which the contested decision came to the knowledge of the applicant as the start of the period for instituting proceedings for annulment is subsidiary to the criteria of publication or notification.

Since the contested decision, not notified to the applicant, was published, it is the date of publication that is the start of the period for the applicant to institute proceedings, and not the date on which it might have learned of the decision.

see paras 29-31

2. Measures or decisions against which proceedings for annulment may be brought under Article 230 EC are measures producing legal effects which are binding on and capable of affecting the interests of the applicant by having a significant effect on his legal position.

In the case of acts or decisions drawn up in several stages, in particular following an internal procedure, in principle only measures definitively laying down the position of the institution upon the conclusion of that procedure may be contested, and not provisional measures intended to pave the way for the final decision.

see paras 43-44

3. A final decision adopted by the Commission in order to conclude the formal review procedure for State aid provided for in Article 88(2) EC constitutes a measure which may be contested on the basis of Article 230 EC. Such a decision produces effects which are binding on and capable of affecting the interests of the parties concerned, since it concludes the procedure in question and definitively decides whether the measure under review is compatible with the rules applying to State aid. Accordingly, interested parties are always able to contest such a decision and must, in that context, be able to challenge the various elements which form the basis for the position definitively adopted by the Commission.

That right is independent of whether, despite its preparatory nature, the decision to initiate the formal review procedure gives rise to legal effects which may be the subject-matter of an action for annulment. Such right cannot have the consequence of diminishing the procedural rights of interested parties by preventing them from challenging the final decision and relying in support of their action on defects at any stage of the procedure leading to that decision.

The body dispensing the aid must therefore have the right to bring an action for the annulment of the decision in its entirety, including the classification of aid as new aid, irrespective of whether or not it challenged that aspect of the decision to open the formal investigation procedure in respect of the aid in question.

see paras 45-47, 49

4. Operating aid, that is to say, aid intended to relieve an undertaking of the expenses which it would normally have had to bear in its day-to-day management or its usual activities, does not in principle fall within the scope of Article 87(3) EC. According to the relevant case-law, the effect of such aid is in principle to distort competition in the sectors in which it is granted, whilst being incapable, by its very nature, of achieving any of the objectives of the exceptions provided for in the EC Treaty.

see para. 130

5. It is a principle of good administration that the Commission must act within a reasonable time in adopting decisions following administrative proceedings relating to competition policy. Whether or not the duration of an administrative procedure is reasonable must be determined in relation to the particular circumstances of each case, and especially its context, the various procedural stages to be followed by the Commission, the complexity of the case and its importance for the various parties involved.

The fact that Article 7(6) of Regulation No 659/1999 laying down detailed rules for the application of Article 93 EC provides that the Commission shall as far as possible endeavour to adopt a decision within a period of 18 months from the opening of the formal procedure for examining an aid is not sufficient to render a 22-month period for adopting such a decision unreasonable.

see paras 136, 139