Keywords

Summary



Keywords

1. Actions for annulment – Time-limits – Point from which time starts to run – Date of publication

(Art. 230, fifth para., EC; Council Regulation No 659/1999, Arts 17, 18, 19(1) and 26(1))

2. State aid – Administrative procedure – Obligation on the Commission to publish the proposal for appropriate measures accepted by the Member State providing the aid

(Art. 88 EC; Council Regulation No 659/1999, Arts 18, 19(1) and 26(1))

3. Actions for annulment – Actionable measures – Measures producing binding legal effects –Commission decision to accept the commitments of a Member State providing aid

(Arts 88(1) and (2) EC and 230, fourth para., EC; Council Regulation No 659/1999, Arts 17 to 19 and 26(2))

4. Actions for annulment – Interest in bringing proceedings – Commission decision accepting the commitments of a Member State providing aid

(Art. 230, fifth para., EC)

5. State aid – Administrative procedure – Obligation of the Commission to put the parties concerned on notice to submit their observations – Decision adopted following a proposal for appropriate measures adopted by the Member State providing the aid

(Art. 88(2), EC; Council Regulation No 659/1999, Arts 6 and 19(1) and (2))

6. State aid – Concept – Measures seeking to compensate an undertaking for the costs associated with its public service mission

(Arts 86(2), EC and 87(1) EC)

7. State aid – Existing aid – Measures intended to compensate an undertaking for the costs associated with its public service mission – Examination by the Commission of the compatibility of the aid with the common market

(Arts 86(2) EC and 88(1) EC)

8. State aid – Existing aid – Examination by the Commission of the compatibility of the aid with the common market – Commitments given by the Member State providing the aid

(Council Regulation No 659/1999, Arts 18, 19(1) and 26(1))

Summary

1. It follows from the wording of the fifth paragraph of Article 230 EC that the criterion of the date on which the applicant became aware of the measure as the start of the period for bringing an action is subsidiary to the criterion of publication or notification of the measure.

As regards measures which, according to the established practice of the Community institution concerned, are published in the Official Journal of the European Union even though that publication is not a condition for their applicability, the criterion of the date on which a measure came to the knowledge of the applicant is not applicable and it is the date of publication which makes the period in which to institute proceedings start to run. In such circumstances, the third party concerned may legitimately expect that the measure in question will be published. That approach, which seeks to ensure legal certainty and applies to all third parties concerned, is valid in particular where the interested third party who instituted the proceedings became aware of the measure before its publication.

The fact that the Commission gives third parties full access to the text of a decision placed on its website, combined with publication of a summary notice in the Official Journal enabling interested parties to identify the decision in question and notifying them of that possibility of access via the internet, must be considered as publication for the purposes of the fifth paragraph of Article 230 EC.

(see paras 33-35)

2. The expression ‘decisions which it takes pursuant to … Article 18 in conjunction with Article 19(1)’ contained in Article 26(1) of Regulation No 659/1999 on the application of Article 88 EC means that the obligation to publish laid down by that provision does not apply at once and solely to the decision taken pursuant to Article 18 of that regulation to address to the Member State a recommendation proposing the adoption of appropriate measures, but that that obligation to publish arises only where the Commission’s recommendation is accepted by the Member State, which corresponds to the situation envisaged in Article 19(1) of that regulation.

Article 26(1) of Regulation No 659/1999 therefore requires the Commission, if and when its recommendation proposing the adoption of appropriate measures referred to in Article 18 of that regulation is accepted by the Member State, to proceed with publication of the terms of that recommendation which the Commission had decided to address to the Member State and of the fact that the recommendation was accepted by the Member State. Third parties are thus informed not of a merely intermediate stage of the review procedure but of its final stage.

(see paras 44-46)

3. Only measures with binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position are capable of being the subject-matter of an application for annulment under the fourth paragraph of Article 230 EC. In order to determine whether an act or decision produces such effects, it is necessary to look to its substance.

In the field of State aid, the procedural rules laid down by the Treaty vary according to whether the measures constitute existing aid subject to Article 88(1) and (2) EC or new aid governed by Article 88(2) and (3) EC. As far as existing aid is concerned, Article 88(1) EC gives the Commission the power, in cooperation with the Member States, to keep that aid under constant review.

According to Article 17(2) of Regulation No 659/1999 on the application of Article 88 EC, if the Commission considers that an existing aid scheme is not, or is no longer, compatible with the common market, it is to inform the Member State concerned of its preliminary view and give the Member State an opportunity to submit its comments within a period of one month.

According to Article 18 of Regulation No 659/1999, if, in the light of the information submitted by the Member State under Article 17, the Commission concludes that an existing aid scheme is not, or is no longer, compatible with the common market, it is to issue a recommendation proposing appropriate measures to the Member State concerned. Such a recommendation, which is no more than a proposal, is not, taken in isolation, a challengeable act.

According to Article 19(1) of Regulation No 659/1999, where the Member State accepts the proposed measures and informs the Commission thereof, the Commission is to record that finding and inform the Member State thereof.

As regards the latter case, that procedure is, by its very nature, a decision-making procedure, which terminates with the ‘decision … [taken] pursuant to … Article 18 in conjunction with Article 19(1)’ referred to in Article 26(1) of Regulation No 659/1999. It is only where the Commission decides to accept the State’s commitments as answering its concerns that the investigation procedure is brought to an end by that decision. Such a decision produces binding legal effects, since, as laid down under Article 19(1) of Regulation No 659/1999, the Member State concerned which, at the time of the publication provided for in Article 26(1) of that regulation, has necessarily accepted the appropriate measures, is bound to implement those measures.

(see paras 60-65, 67, 69-70, 73)

4. An action for annulment brought by a natural or legal person is not admissible unless the applicant has an interest in seeing the contested measure annulled. That interest must be vested and present and is evaluated as at the date on which the action is brought. Such an interest presupposes that the annulment of the measure must of itself be capable of having legal consequences or, to use a different form of words, the action must be liable, if successful, to procure an advantage for the party who has brought it. A decision which gives full satisfaction to the applicant is not, by definition, capable of adversely affecting it and such an applicant has no interest in seeking its annulment. Conversely, where the applicant claims that the measure in question, even though it may be partially favourable to him, none the less does not adequately protect his legal situation, it must be recognised that he has an interesting in bringing proceedings to have the legality of that decision verified by the Community judicature. The assessment as to whether or not the contested measure is favourable goes to the substance and not the admissibility of the application.

A private commercial television channel will have an interest in bringing proceedings where it is faced with a decision of the Commission declaring compatible with the common market, having regard to the commitments given by the Member State concerned, a system involving the onward payment of the audiovisual licence fee received by that State to public television channels, and considers that those commitments are inappropriate for ensuring the compatibility of that system with the common market.

(see paras 84-87, 92)

5. The procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in the light of its Community obligations, for granting the aid. That consideration applies both to new aid and to existing aid. Thus, whilst there is nothing to prohibit a party from forwarding to the Commission information alleging the incompatibility of a State aid with the common market, whether it be a new aid or an existing aid, that entitlement does not confer on that party any right of defence. The Commission is under no obligation whatsoever to engage in discussions with that party.

Thus, while it is true that, in the context of the formal investigation procedure provided for in the first subparagraph of Article 88(2) EC and Article 6 of Regulation No 659/1999 on the application of Article 88 EC, a procedure which may be initiated, with regard to the examination of new aid, by a decision taken under Article 4(4) of Regulation No 659/1999 and, in the case of the constant review of existing aid, by a decision taken under Article 19(2) of that regulation, the Commission is to call upon the interested parties to submit comments in accordance with the second sentence of Article 6(1) of Regulation No 659/1999, that is not the case with a decision which was not adopted in the course of a formal investigation procedure, but was the outcome of a proposal for appropriate measures accepted by the Member State concerned, that is to say, in the context of Article 19(1) of Regulation No 659/1999. At that stage of the procedure for constant review of existing aid, the Commission is not required to invite interested parties to submit their comments to it.

(see paras 99-103)

6. The sole purpose of the four conditions set out in paragraph 95 of the judgment in Case C-280/00 Altmark is the classification of the measure in question as State aid, and more specifically the determination of the existence of an advantage. The decisions of the Court of Justice and of the Court of First Instance referring to the conditions laid down in that judgment do not detract from the fact that those conditions relate to the classification of State aid within the meaning of Article 87(1) EC and they do not indicate that the Court of Justice wished, by enunciating those conditions, to cease applying Article 86(2) EC when assessing the compatibility with the common market of State measures for the financing of services of general economic interest. The Altmark test, which seeks to determine the existence of State aid within the meaning of Article 87(1) EC, should not be confused with the Article 86(2) EC test, which is used to determine whether a measure constituting State aid may be regarded as compatible with the common market.

(see paras 130, 135, 140)

7. The examination of existing aids by the Commission can only lead to measures which produce effects in the future. Whilst it is possible that, as part of the constant review of an existing aid intended to compensate an undertaking for the costs associated with its public service mission, the examination of whether there has been any over-compensation of those costs in the past may possibly, depending on the particular circumstances of the case, be relevant to an assessment of the compatibility of that existing aid with the common market, the fact nevertheless remains that an examination of that kind is not, in itself, absolutely necessary for a proper assessment of the need to propose appropriate measures for the future and determination of what those measures should be. The risk or otherwise of over-compensation for the future depends essentially on the specific detailed arrangements of the financing scheme itself, and not on the fact that the scheme has, in practice, led to over-compensation in the past.

(see paras 166-167)

8. It is clear from the wording of Article 18 of Regulation No 659/1999 on the application of Article 88 EC that the Commission enjoys a broad discretion in exercising its power to adopt, under Article 26(1) of that regulation, a decision ‘pursuant to … Article 18 in conjunction with Article 19(1)’ of that regulation and, in that context, to determine the appropriate measures to respond to its conclusion that an aid scheme is not, or is no longer, compatible with the common market. In those circumstances, it is not for the Court of First Instance to substitute its own assessment for that of the Commission: its review must be limited to checking that the institution has not committed a manifest error of assessment by considering that the commitments given by the Member State providing the existing aid are capable of resolving the competition problems raised by the aid scheme in question.

(see paras 188-189)