Keywords

Summary



Keywords

1 Actions for annulment - Time-limits - Point from which time starts to run - Date of publication - Date on which the measure came to the applicant's knowledge - Subsidiary criterion

(EC Treaty, Art. 93(2) (now Art. 88(2) EC) and Art. 173, fifth para. (now, after amendment, Art. 230, fifth para., EC))

2 State aid - Prohibited - Derogations - Aid that may be considered compatible with the common market - Discretion of the Commission - Judicial review - Limits - Legality to be assessed on the basis of the elements of fact and of law existing at the time when the decision was adopted

(EC Treaty, Art. 92(3) (now, after amendment, Art. 87(3) EC) and Art. 173 (now, after amendment, Art. 230 EC))

3 State aid - Prohibited - Derogations - Aid that may be considered compatible with the common market - Conditions - No regional aim - Irrelevant

(EC Treaty, Art. 92(3)(c) (now, after amendment, Art. 87(3)(c) EC))

4 State aid - Prohibited - Derogations - Aid that may be considered compatible with the common market - Aid for restructuring an undertaking in difficulty - Period prescribed by the guidelines for drawing up a restructuring programme - Not binding

5 State aid - Prohibited - Derogations - Aid that may be considered compatible with the common market - Aid for restructuring an undertaking in difficulty - Conditions - Prospect of viability

6 State aid - Prohibited - Derogations - Aid that may be considered compatible with the common market - Aid for restructuring an undertaking in difficulty - Conditions - Aid entailing capacity reductions - Whether permissible

7 Actions for annulment - Pleas in law - Pleas that can be raised when contesting a Commission decision authorising State aid - Pleas not raised during the investigation procedure - Whether admissible

(EC Treaty, Art. 93(2) (now Art. 88(2) EC) and Art. 173 (now, after amendment, Art. 230 EC))

Summary

1 According to the actual wording of the fifth paragraph of Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point for the period prescribed for instituting proceedings, is subsidiary to the criteria of publication or notification of the measure.

Since the Commission has committed itself to publishing in the Official Journal of the European Communities the complete text of decisions granting conditional authorisation for State aid adopted at the end of the procedure provided for by Article 93(2) of the Treaty (now Article 88(2) EC), time for the purposes of bringing proceedings starts to run as from the date of publication of the decision.

2 The Commission enjoys a broad discretion in the application of Article 92(3) of the Treaty (now, after amendment, Article 87(3) EC). Since that discretion involves complex economic and social appraisals, the Court must, in reviewing a decision adopted in such a context, confine its review to determining whether the Commission complied with the rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based are accurately stated and whether there has been any manifest error of assessment or any misuse of powers. In particular, it is not for the Court to substitute its own economic assessment for that of the Commission.

In the context of an action for annulment under Article 173 of the Treaty (now, after amendment, Article 230 EC), the legality of a Community measure falls to be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. In particular, the complex assessments made by the Commission must be examined solely on the basis of the information available to it at the time when those assessments were made.

3 The fact that disjunctive `or' is used in Article 92(3)(c) of the Treaty makes it clear that aid to facilitate the development either of certain activities or of certain economic areas may be regarded as compatible with the common market. It follows that the grant of authorisation for aid is not necessarily subordinate to the provision's regional aim.

4 The fact that the period of six months - indicated in the Community Guidelines on State aid for rescuing and restructuring undertakings in difficulty as the period within which a restructuring plan must be drawn up - has been exceeded does not in itself justify a refusal to authorise aid. That time-limit is not of a binding nature; rather it is the period considered in the Guidelines to be needed, from the time when rescue aid is paid, in order to determine the measures necessary to restore the recipient undertaking to financial health.

5 In order to satisfy the viability test required by the Community Guidelines on State aid for rescuing and restructuring undertakings in difficulty, a restructuring plan must enable the undertaking concerned to cover all its costs, including depreciation and financial charges, and to obtain a minimum return on capital such that, after completing its restructuring, the undertaking will not require further injections of State support and will be able to compete in the marketplace on its own merits alone.

6 In the context of aid for restructuring an undertaking in difficulty, reductions in capacity provided for in a restructuring plan cannot be equated with reductions in jobs, since the relationship between the number of employees and production capacity depends on a number of factors, in particular the products manufactured and the technology used.

7 An applicant may not rely on factual arguments which are unknown to the Commission and which it has not notified to the latter during an investigation of State aid pursuant to Article 93(2) of the Treaty (now Article 88(2) EC). On the other hand, there is nothing to prevent the interested party from raising against the final decision a plea in law not raised at the stage of the administrative procedure.

The investigation procedure under Article 93(2) of the Treaty cannot be classed as a pre-litigation procedure against a final decision; its purpose is, on the contrary, to enable the Commission to be fully informed about all aspects of the case before it takes its decision.