That is particularly true of the Member State’s obligation to suspend an aid measure which has been implemented without having been notified and which is still in the course of implementation on the date when the decision to open the formal examination procedure is adopted. A decision to initiate the formal examination procedure in relation to a measure in the course of implementation and classified by the Commission as new aid necessarily alters the legal implications of the measure under consideration and the legal position of the recipient firms, particularly as regards the continued implementation of the measure. That is plainly the case not only where a measure in the course of implementation is regarded by the authorities of the Member State concerned as existing aid, but also where the authorities take the view that the measure in question does not constitute State aid.

A decision by the Commission to open a formal examination procedure on a State aid measure may be a challengeable act in so far as it is liable to entail independent legal effects, that is to say, when such a decision produces a legally binding effect which is sufficiently immediate and certain in relation to the Member State to which it is addressed and the beneficiary or beneficiaries of the measure under examination.

A Commission decision to initiate the formal examination procedure in respect of a fully implemented aid measure cannot be classified as a measure open to challenge for the purposes of Article 263 TFEU. Unlike a decision to initiate the formal examination procedure in respect of a measure in the course of implementation, a decision of that nature in respect of a measure which is no longer in the course of implementation does not entail independent legal effects, since its scope is not immediate, certain and sufficiently binding in relation to the Member State to which it is addressed and the beneficiary or beneficiaries of the measure under examination. First of all, such a measure cannot be suspended because it has been implemented in its entirety on the date when the contested decision was adopted. Secondly, given its content and scope, a decision to open the formal procedure in respect of an implemented measure cannot give rise to an obligation for the Member State concerned to recover the aid granted. Moreover, it is clear from Article 11(2) of Regulation No 659/1999 laying down detailed rules for the application of Article 93 EC that the Commission is subject to strict conditions when it envisages ordering the Member State concerned to proceed with provisional recovery of the aid.

In that regard, even where the national court, before which such an application has been made, can order recovery of the aid in question, irrespective of whether the measure in question is in the course of implementation on the date of the decision to open the formal examination procedure, that does not confer on that decision an effect which is immediate, certain and sufficiently binding. The obligation on the national court to adopt safeguard measures in a dispute involving an aid measure requires that the conditions justifying such measures be satisfied, namely, that there is no doubt regarding the classification as State aid, that the aid is about to be, or has been, implemented, and that no exceptional circumstances have been found which would make recovery inappropriate. There is therefore no absolute, unconditional obligation requiring the national court automatically to follow the Commission’s provisional assessment.

Moreover, the commercial uncertainty and perceptions of other traders of the situation of an aid recipient cannot be considered binding legal effects, as they are merely factual consequences and not legal effects which the decision to open the formal examination procedure is intended to produce.

(see paras 37, 38, 40, 41, 44-46, 51)