Keywords

Summary



Keywords

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1. Procedure ° Intervention ° Plea of inadmissibility not raised by the defendant ° Inadmissible

(Statute of the Court of Justice of the EEC, Art. 37(3); Rules of Procedure of the Court of Justice, Art. 93(4))

2. Actions for annulment of measures ° Natural or legal persons ° Measures of direct and individual concern to them ° Commission decision addressed to a Member State finding a State aid to be compatible with the common market ° Action brought by persons concerned within the meaning of Article 93(2) of the Treaty ° Admissibility

(EEC Treaty, Art. 93(2) and (3) and Art. 173, second para.)

3. State aid ° Planned aid ° Initiation of the investigation procedure ° Commission' s discretion ° Reference to the Community context ° Review by the Court ° Limits

(EEC Treaty, Arts 93(3) and 173)

4. State aid ° Planned aid ° Examination by the Commission ° Initial examination and inter partes stage ° Compatibility of an aid with the common market ° Difficulties of assessment ° Commission' s obligation to initiate the inter partes procedure ° Size of the investment or aid ° Not relevant

(EEC Treaty, Art. 93(2) and (3))

5. State aid ° Prohibition ° Exceptions ° Discretion of the Commission and Council ° Limits ° Decision finding an aid compatible with the common market where the effects of the aid contravene specific provisions of the Treaty, especially on competition ° Not permissible ° Obligation to await the outcome of a competition procedure before deciding on the compatibility of an aid ° None

(EEC Treaty, Arts 85 et seq. and 92 et seq.; Council Regulation No 17)

Summary

1. Under the third paragraph of Article 37 of the Protocol on the Statute of the Court of Justice of the EEC and Article 93(4) of the Rules of Procedure, an intervener must accept the case as he finds it at the time of his intervention, and the submissions in his application are limited to supporting the submissions of one of the parties. He therefore has no standing to raise a plea of inadmissibility which has not been put forward by the defendant.

2. Persons other than those to whom a decision is addressed may claim to be concerned within the meaning of the second paragraph of Article 173 of the Treaty only if that decision affects them by reason of certain attributes which are particular to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.

Where, without initiating the procedure under Article 93(2) of the Treaty, the Commission finds on the basis of Article 93(3) that a State aid is compatible with the common market, the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations, and who, as parties concerned, benefit from procedural guarantees if the procedure under Article 93(2) is used, must be permitted to bring an action for the annulment of the decision making that finding.

3. As regards the application of Article 93(3) of the Treaty, the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context.

In its review of legality under Article 173 of the Treaty, the Court must therefore restrict itself to determining whether the Commission has exceeded the scope of its discretion by a distortion or manifest error of assessment of the facts or by misuse of powers or abuse of process.

4. The procedure under Article 93(2) of the Treaty is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. The Commission may restrict itself to the preliminary examination under Article 93(3) when taking a decision in favour of an aid only if it is able to satisfy itself after an initial examination that the aid is compatible with the Treaty. If, on the other hand, the initial examination leads the Commission to the opposite conclusion, or does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure provided for in Article 93(2). In this respect, the size of an investment or aid cannot in itself constitute a serious difficulty, as otherwise the Commission would be obliged to initiate the procedure under Article 93(2) whenever the investment or aid exceeded a certain level, which would moreover have to be defined. That is all the more so as the decisive factor is not the amount of the aid so much as its effect on intra-Community trade.

5. While the procedure provided for in Articles 92 and 93 of the Treaty leaves a discretion to the Commission, and under certain conditions to the Council, in coming to a decision on the compatibility of a system of State aid with the requirements of the common market, it is clear from the general scheme of the Treaty that that procedure must never produce a result which is contrary to the specific provisions of the Treaty, and in particular the other provisions which also pursue the objective of undistorted competition in the common market.

Nevertheless, the procedure under Article 85 et seq. and that under Article 92 et seq. of the Treaty are independent procedures governed by specific rules, with the result that, when the Commission is called upon to take a decision on the compatibility of State aid with the common market, it is not obliged to await the outcome of a parallel procedure initiated under Regulation No 17, once it has reached the conclusion, based on an economic analysis of the situation and without any manifest error in the assessment of the facts, that the recipient of the aid is not in contravention of Articles 85 and 86 of the Treaty.