Keywords

Summary



Keywords

1. Appeal – Grounds – Use of a new argument – Admissibility – Limits

(Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court of Justice, Art. 113(2))

2. Actions for annulment – Actionable measures – Acts open to challenge by a party bringing a complaint concerning State aid – Letter from the Commission informing the party bringing the complaint that there were not sufficient reasons to enable it to give an opinion on the case – Decision pursuant to Article 4 of Regulation No 659/1999 – Challengeable act – Action by the parties concerned pursuant to Article 88(2) EC – Admissibility

(Articles 88(2) and (3) EC and 230 EC; Council Regulation No 659/1999, Articles 4 and 13)

Summary

1. It follows from Article 58 of the Statute of the Court of Justice, in conjunction with Article 113(2) of the Rules of Procedure of the Court of Justice that, on appeal, an appellant may put forward any relevant argument, provided only that the subject-matter of the proceedings before the General Court is not changed in the appeal.

(see para. 41)

2. Concerning the admissibility of actions for annulment pursuant to Article 230 EC, it is necessary to look to the actual substance of the acts challenged in order to classify them. The form in which an act or decision is adopted is in principle irrelevant to the right to challenge such acts or decisions by way of an action for annulment. It is therefore, in principle, irrelevant for the classification of the act in question whether or not it satisfies certain formal requirements, namely in particular, that it be duly identified by its author and that it mention the provisions providing the legal basis for it, or whether it satisfies a requirement to notify a third party.

Measures that definitively determine the position of the Commission upon the conclusion of an administrative procedure and are intended to have legal effects capable of affecting the interests of the complainant, but not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects, constitute acts open to challenge for the purposes of Article 230 EC.

In the procedure for reviewing State aid, the Commission must carry out an examination when it has in its possession information regarding allegedly unlawful aid, whatever its source may be. The examination of a complaint gives rise to the initiation of the preliminary examination stage under Article 88(3) EC and obliges the Commission to examine, immediately, the possible existence of aid and its compatibility with the common market. Article 13(1) of Regulation No 659/1999, relating to the application of Article 88 EC, obliges the Commission to close that preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision finding that aid does not exist, raising no objections or initiating the formal investigation procedure, since that institution is not authorised to persist in its failure to act during the preliminary examination stage. Once that stage of the procedure has been completed the Commission is bound, consequently, either to initiate the next stage of the procedure, provided for by Article 88(2) EC, or to adopt a definitive decision rejecting the complaint.

Where the Commission either finds, following examination of a complaint, that the investigation has revealed no grounds for concluding that there is State aid within the meaning of Article 87 EC, or classifies the measure as existing aid, thus subjecting it to the constant review provided for in Article 88(1) EC, it refuses by implication to initiate the procedure provided for by Article 88(2) EC. Such a decision refusing to initiate the procedure provided for by Article 88(2) EC is definitive and cannot be characterised as a mere provisional measure.

Therefore, a letter from the Commission classifying, inter alia, the aid referred to in a complaint filed by a competitor of the beneficiary of that aid as existing aid and concluding that there were not sufficient reasons for continuing the investigation of the matter, constitutes a decision pursuant to Article 4 of Regulation No 659/1999 and must be regarded as a challengeable act for the purposes of Article 230 EC. When the Commission concludes that there are not sufficient reasons for continuing to investigate the complaint, it follows from the substance of the act in question that that institution has formed a definitive opinion on the measures examined, thus expressing its wish to terminate its preliminary examination. With that finding, it refuses by implication to initiate the formal investigation procedure under Article 88(2) EC.

Faced with such a decision, the persons intended to benefit from the procedural guarantees afforded by Article 88(2) EC may secure compliance therewith only if they are able to challenge the decision in question before the European Union judicature under the fourth paragraph of Article 230 EC.

(see paras 46-54, 57-60)