Opinion of the Advocate-General



Opinion of the Advocate-General

1. This case should lead the Court to provide additional information on the rights of complainants in the context of the procedure for monitoring State aid.

2. It is necessary to establish whether the closure, by the Commission of the European Communities, of the file on a complaint alleging the existence of aid incompatible with the EC Treaty, on the ground that the Commission does not have in its possession sufficient evidence to define its position on the existence of that aid or its compatibility with the common market or to initiate a formal investigation procedure, constitutes a decision against which the complainant may appeal.

3. In its order of 26 September 2006 in Athinaïki Techniki v Commission , (2) the Court of First Instance of the European Communities, in accordance with the position taken by the Commission, ruled that such a measure closing the file does not constitute a decision and dismissed as inadmissible the action brought against it. That analysis is challenged by Athinaïki Techniki AE (3) in the context of this appeal.

4. In this Opinion, I shall argue that the appeal brought by Athinaïki Techniki is, in my view, well founded and that such a closure of the file on a complaint relating to alleged State aid does constitute an actionable decision.

5. Consideration of the second plea relied on by the Commission in support of its objection of inadmissibility of the action for annulment, alleging the late submission of the action, will also lead me to examine the provisions of the Rules of Procedure of the Court of First Instance providing for the possibility of bringing an action before that court by sending the application by fax and to explain the scope of the requirement that the version of the application forwarded by fax must be identical to the original which is to be lodged at the Registry within 10 days.

I – The legal framework relating to State aid

6. I will present in turn the relevant provisions of the Treaty and those of Regulation (EC) No 659/1999, (4) which codified the exercise of the powers conferred on the Commission by the Treaty, and the broad outlines of the case-law relating, first, to the Commission’s obligations when it receives a complaint alleging that national measures are State aid contrary to the Treaty and, secondly, to the rights of complainants.

A – The Treaty

7. According to Article 87 EC, any aid granted by a Member State or through State resources in any form whatsoever, which distorts or threatens to distort competition within the Community, is prohibited in principle, subject to the exemptions set out in paragraphs 2 and 3 of that article. (5)

8. In order to ensure the implementation of those provisions and to reconcile the Member States’ right to take action with the guarantee of undistorted competition within the European Union, the Treaty laid down a procedure for the monitoring and prior authorisation of State aid, in which the Commission plays the central role.

9. Accordingly, under Article 88(1) EC, it is for the Commission, in cooperation with Member States, to keep under constant review all systems of aid existing in those States and to propose any appropriate measures required by the progressive development or by the functioning of the common market.

10. The first subparagraph of Article 88(2) EC also gives the Commission the task of assessing whether aid is compatible with Article 87 EC and of deciding, in cases where aid is incompatible, that the Member State concerned must bring that aid to an end. The first subparagraph of Article 88(2) EC actually provides that ‘[i]f, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission’.

11. Finally, Article 88(3) EC requires the Member States to notify their plans to grant or alter aid to the Commission and prohibits them from putting such plans into effect until it has reached a decision under the first subparagraph of Article 88(2) EC.

12. The review procedure provided for in Article 88 EC has been interpreted as potentially comprising two stages, namely an initial review and, where appropriate, if the Commission entertains doubts as to the compatibility of the planned aid with the common market or considers that that aid is incompatible therewith, a more in-depth examination designed to enable the Commission to be fully informed of all the facts of the case. To that end, under Article 88(2) EC, the Commission must invite interested parties to submit their comments. (6)

B – Regulation No 659/1999

13. Regulation No 659/1999 codified the exercise by the Commission of the powers conferred on it by Article 88 EC. According to recital 2 in the preamble to that regulation, it was drawn up in accordance with the case-law of the Court.

14. Under that regulation, any plans to grant new aid must, in principle, be notified to the Commission by the Member State concerned, which must provide the Commission with all information necessary for it to be able to take a decision on that plan. (7)

15. The various types of decision which may be taken by the Commission are set out in Articles 4 and 7 of the regulation.

16. Article 4 of Regulation No 659/1999 sets out the decisions which may be adopted after the stage of the ‘preliminary examination’ of the notification. The Commission has three options open to it. It may (i) decide that the notified measure does not constitute aid, (ii) decide that that measure constitutes aid compatible with the common market (decision not to raise objections), or (iii) decide that doubts are raised as to the compatibility with the common market of the notified measure and initiate the formal investigation procedure (decision to initiate the formal investigation procedure).

17. Those decisions must be taken within a period of two months beginning on the day following notification of the plan where that notification is deemed to be complete. The Commission, if it considers that the notification is incomplete, may request from the Member State concerned all necessary additional information. (8)

18. If the Commission has decided to initiate the formal investigation procedure, Article 6 of Regulation No 659/1999 provides that it is to call upon the Member State concerned and upon other interested parties to submit comments within the period prescribed by the Commission.

19. Article 1(h) of that regulation defines ‘interested party’ as ‘any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’.

20. After the formal investigation procedure, the Commission, under Article 7 of that regulation, must give a decision finding that the notified measure does not constitute aid, that that measure constitutes aid compatible with the common market, or that it is aid incompatible with the common market.

21. Articles 10 to 15 of Regulation No 659/1999 also lay down the procedure which is to be followed by the Commission in the case of unlawful aid. Aid is unlawful where it has been put into effect by the Member State concerned without having been previously notified to the Commission, in contravention of the provisions of Article 88(3) EC. (9)

22. Article 10(1) of that regulation provides:

‘Where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.’

23. Article 13(1) of the regulation provides:

‘The examination of possible unlawful aid shall result in a decision pursuant to Article 4 … . In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 7. …’

24. Article 20 of Regulation No 659/1999 relates in particular to the rights of interested parties. Article 20(1) states that any interested party may submit comments following a Commission decision to initiate the formal investigation procedure. It adds that any interested party which has submitted such comments and any beneficiary of individual aid must be sent a copy of the decision taken by the Commission at the end of that procedure.

25. Article 20(2) of the regulation is, for its part, the focus of the present dispute. It is worded as follows:

‘Any interested party may inform the Commission of any alleged unlawful aid and any alleged misuse of aid. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for taking a view on the case, it shall inform the interested party thereof. Where the Commission takes a decision on a case concerning the subject-matter of the information supplied, it shall send a copy of that decision to the interested party.’

26. Article 20(3) of that regulation then provides that any interested party may, at its request, obtain a copy of any decision pursuant to Articles 4 and 7 thereof.

27. Moreover, according to Article 25 of Regulation No 659/1999, decisions taken pursuant thereto are to be addressed to the Member State concerned.

C – Case-law relating to the Commission’s obligations when it receives a complaint concerning alleged aid and to the rights of the complainants

28. Prior to adoption of Regulation No 659/1999 or where it was not applicable, the Commission’s obligations when receiving a complaint alleging that a national measure is contrary to the Treaty and the rights of complainants in proceedings for monitoring State aid were inferred from the case-law concerning Articles 87 EC and 88 EC.

29. In so far as that regulation, which was adopted for the purposes of the application of those articles of the Treaty, cannot restrict their scope (10) and in so far as the regulation reproduces the existing case-law by codifying it, that case-law is therefore relevant in interpreting its provisions.

1. The Commission’s obligations

30. The following two factors serve to justify the Commission’s obligations when it receives a complaint concerning alleged State aid. Those obligations arise, first, from the fact that the Commission, leaving aside the powers conferred on the Council of the European Union by the third subparagraph of Article 88(2) EC, has exclusive competence in assessing whether aid is compatible with the Treaty. They are based, secondly, on the prohibition in principle of State aid. In accordance with that exclusive competence and that prohibition in principle, the Commission is under an obligation to ensure that no aid contrary to the Treaty is granted or maintained. (11)

31. Where a complaint has been made to the Commission, the Community judicature, in its case-law, has drawn the following conclusions as regards how the complaint is to be handled from the points of view of substance and time.

32. From the point of view of substance, it is the Commission’s responsibility, first of all, to conduct a diligent and impartial examination of the complaint. (12) That obligation of diligence may extend so far as to require it to examine matters of fact and of law which were not expressly relied on by the complainant. (13)

33. However, the Commission is not obliged, at that stage of the procedure, to hear the complainant or the other ‘parties concerned’ within the meaning of Article 88(2) EC. It is only in the context of the formal investigation procedure that it is subject to that obligation. (14)

34. Then, if the Commission decides that the measure forming the subject-matter of the complaint does not constitute aid, it is required to provide an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid. (15) The same requirement to state reasons should logically be imposed if the Commission finds that the measure complained of constitutes aid compatible with the common market.

35. Moreover, if, after the preliminary examination stage, the Commission concludes that the measure complained of constitutes aid incompatible with the common market or if it experiences serious difficulties in taking a view on whether that aid is compatible with the common market, it is required to initiate the formal investigation procedure, as is the case where the measure in question is notified to the Commission by the Member State concerned. (16)

36. From the point of view of time, the Court of First Instance has also inferred from the Commission’s exclusive competence and from the prohibition in principle of State aid that that institution, when it receives a complaint, cannot prolong indefinitely its preliminary examination into the State aid complained of therein. According to the Court of First Instance, the Commission is required to complete that preliminary examination within a reasonable period. (17)

37. Whether or not that period is reasonable must be determined in relation to the particular circumstances of each case, in particular to the context and complexity of the case and the various procedural stages. (18)

2. The complainant’s rights

38. The case-law relating to complainants’ rights in the context of the procedure for monitoring State aid is founded on the premiss that decisions adopted by the Commission in that context are addressed to the Member States concerned, including where those decisions are given following complaints alleging that a measure is State aid contrary to the Treaty. (19)

39. It must also be noted that, under the fourth paragraph of Article 230 EC, a natural or legal person may institute proceedings against a decision addressed to another person only if that decision is of direct and individual concern to him.

40. The rights of complainants in the context of the procedure for monitoring State aid, as they are set out in the case-law, depend, first, on whether those complainants have the status of ‘parties concerned’ within the meaning of Article 88(2) EC and, secondly, on the subject-matter of the action brought by them.

41. First, the concept of ‘parties concerned’ within the meaning of that provision has been broadly defined as covering the persons, undertakings or associations of undertakings whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations. (20) That definition was reproduced in Article 1(h) of Regulation No 659/1999.

42. It follows that any undertaking invoking the existence of a competitive relationship, albeit potential, may be regarded as having the status of ‘party concerned’ within the meaning of Article 88(2) EC.

43. With regard, secondly, to the right of action of those parties concerned, it is based on the procedural rights which are conferred on them by that provision. Under that provision, the Commission, when it initiates the formal investigation procedure and only at that stage, is required to obtain their comments. (21)

44. The Court inferred from this that, where the Commission, without initiating that procedure, considers that the measure complained of by the complainant does not constitute aid or constitutes aid compatible with the common market, that complainant, if he is a ‘party concerned’ within the meaning of Article 88(2) EC, is entitled to challenge that decision before the Community judicature. (22)

45. However, the Court has stated that the subject-matter of such an action must be limited to safeguarding the procedural rights referred to in that provision, that is to say that it must call in question the failure to initiate the formal investigation procedure. (23)

46. It follows that if the complainant has the status of ‘party concerned’, within the meaning of Article 88(2) EC, he may be regarded as directly and individually concerned by the contested decision, within the meaning of the fourth paragraph of Article 230 EC, in so far as he is challenging the failure to initiate the formal investigation procedure.

47. However, if a complainant calls in question the merits of the decision appraising the aid as such or if he challenges a decision adopted following the formal investigation procedure, he is in the same situation as any private individual seeking to challenge a decision which is not addressed to him. The admissibility of his action is therefore subject to the requirement that he show that he is affected by that decision within the meaning of the case-law developed since the judgment in Plaumann v Commission, (24) that is to say that that decision affects him by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons. (25)

48. The Court has acknowledged that that may be so, in particular, where the complainant’s market position is substantially affected by the aid to which the decision at issue relates. (26) The fact that a person is a potential competitor and has the status of ‘party concerned’ within the meaning of Article 88(2) EC is therefore not sufficient to confer on him the right to bring an action before the Community judicature to challenge the merits of the decision appraising the aid as such. (27)

49. Finally, in its judgment in Air One v Commission , the Court of First Instance extended the rights of a complainant who is a ‘party concerned’ within the meaning of Article 88(2) EC to an action based on Article 232 EC, in declaring admissible an action for failure to act brought by that complainant against the Commission where the latter failed to adopt a decision following its complaint. (28)

50. The Court of First Instance dismissed the Commission’s argument that Air One should have shown that its competitive position would be substantially affected by the measure referred to in its complaint.

51. The Court of First Instance inferred that the proceedings for failure to act instituted by Air One were admissible from the fact that the latter, as a competitor of the beneficiary of the alleged aid on the air routes to certain Italian towns, has the status of ‘party concerned’ within the meaning of Article 88(2) EC and is thus entitled to challenge a decision taken by the Commission without initiating the formal investigation procedure, in order to safeguard its procedural rights. (29)

II – The facts giving rise to the dispute

52. The facts giving rise to the dispute are set out as follows in the contested order:

‘1 In October 2001, the Greek authorities initiated a procedure for the award of a public contract with a view to disposing of 49% of the capital of the Casino Mont Parnès. There were two competing applicants, namely the Casino Attikis consortium and the Hyatt consortium. Following an allegedly invalid procedure, the contract was awarded to the Hyatt consortium.

2 A member of the Casino Attikis consortium, Egnatia SA, which, following a merger, was succeeded by [Athinaïki Techniki] lodged complaints, respectively, with the Commission’s Directorate General (DG) for the “Internal Market” and DG for “Competition”. The former was called upon to take a view on the lawfulness of the contested procedure in the light of Community law on public contracts, whereas the latter received a complaint concerning State aid which was alleged to have been granted to the Hyatt consortium in the context of that same procedure.

3 By letter of 15 July 2003, the DG for “Competition” drew the attention of [Athinaïki Techniki] to its decision-making practice according to which the disposal of a public asset in the context of a tendering procedure does not constitute State aid where that procedure has been carried out transparently and without discrimination. Consequently, the Commission informed the complainant that it would not take a view until the DG for the “Internal Market” had completed its examination of the procedure for the award of the public contract at issue.

4 By electronic mail of 28 August 2003, the representative of [Athinaïki Techniki] stated, in essence, that the complaint relating to the existence of State aid was concerned with factors separate from the procedure for the award of the public contract and that, consequently, the services of the DG for “Competition” should not wait for the conclusions of the DG for the “Internal Market”.

5 By letter of 16 September 2003, the services of the DG for “Competition” reiterated the wording of the letter of 15 July 2003 but nonetheless invited [Athinaïki Techniki] to provide them with additional information concerning any other aid which was not connected with the tendering of the casino.

6 By letters of 22 January and 4 August 2004, the services of the DG for the “Internal Market” informed [Athinaïki Techniki] that they did not intend to continue the examination of the two complaints which had been addressed to them.

7 By letter of 2 December 2004 …, the DG for “Competition” informed [Athinaïki Techniki] that, by letter of 16 September 2003, the Commission had informed it that, “on the basis of the information in its possession, there [were] insufficient grounds for continuing to examine that case”. The letter [of 2 December 2004] also stated that, “in the absence of additional information to justify continuing the investigation, the Commission [had], for the purposes of further administrative action, closed the file on the case on 2 June 2004”.’

III – The action before the Court of First Instance and the contested order

53. On 11 February 2005, Athinaïki Techniki sent the Registry of the Court of First Instance a copy of the application by fax. On 18 February 2005, the signed original of the application was lodged with that Registry.

54. In that application initiating proceedings, Athinaïki Techniki applied for the annulment of the Commission’s decision to close the file on its complaint and for the Commission to be ordered to bear the costs. In support of its application, it relied on two pleas in law alleging infringement, first, of the Commission’s obligation to initiate the formal investigation procedure and, secondly, of the provisions of Article 87(1) EC. Athinaïki Techniki also relied on a failure to provide an adequate statement of reasons in the context of each of those pleas.

55. By letter of 1 March 2005, the Registrar of the Court of First Instance informed Athinaïki Techniki that he had noted that the version of the application sent by fax on 11 February 2005 was not a completely identical copy of the signed original lodged on 18 February 2005 and that the date to be taken into consideration as that on which that document was lodged was, accordingly, that on which the original was delivered.

56. By letter of 16 March 2005, Athinaïki Techniki’s representative explained to the Registrar of the Court of First Instance that when the application was sent by fax the last page of it had been damaged and he had therefore had to replace it but had not altered its content.

57. By separate document registered at the Registry of the Court of First Instance on 21 April 2005, the Commission, pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance, raised an objection of inadmissibility.

58. By order of 8 September 2005, the Court of First Instance granted the application of Athens Resort Casino AE Symmetochon (30) for leave to intervene in support of the forms of order sought by the Commission.

59. In support of its objection of inadmissibility, the Commission put forward two pleas, alleging, first, the late lodgment of the application and, secondly, the non-actionable nature of the letter of 2 December 2004 and the non-existence of a decision.

60. The Court of First Instance, in the contested order, examined only the second plea. It declared that it was well founded for the following reasons.

61. The Court of First Instance cited the first and second sentences of Article 20(2) of Regulation No 659/1999. It noted that, according to settled case-law, the only decisions which may be the subject of an action for annulment within the meaning of Article 230 EC are measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position.

62. It stated that, under Article 25 of that regulation, decisions adopted by the Commission in the field of State aid are addressed to the Member States, including where those decisions are taken following a complaint concerning aid allegedly contrary to the Treaty, and that it is the decision addressed to the Member State and not the letter addressed to the complainant which must, where appropriate, be the subject of an action for annulment.

63. The Court of First Instance then held that:

‘29 In the present case, the contested letter, which was addressed solely to [Athinaïki Techniki], informed it, pursuant to Article 20 of Regulation No 659/1999, that, on the basis of the information in its possession, the Commission considered that there were insufficient grounds for taking a view on the case which was submitted to it in the complaint. In [that letter], the Commission then stated that, in the absence of additional information to justify continuing the investigation, it had, for the purposes of further administrative action, closed the file on Athinaïki Techniki’s complaint on 2 June 2004. The Commission therefore did not define its final position on the classification and the compatibility with the common market of the measure forming the subject-matter of Athinaïki Techniki’s complaint.

30 It follows that the contested letter does not constitute a decision within the meaning of Article 25 of Regulation No 659/1999 and that it has no legal effect. That letter is therefore not actionable under Article 230 EC.’

64. The Court of First Instance then dismissed Athinaïki Techniki’s argument that the non-actionable nature of a letter rejecting a complaint has the effect of depriving citizens of access to Community justice. It explained, first, that a complainant may provide additional information in order to support his complaint and that, in the event that that information is inadequate, the Commission is then required to define its position on the measure in question by means of an actionable decision. It argued, secondly, that it is also open to the complainant to bring an action for failure to act under the third subparagraph of Article 232 EC.

65. Finally, it responded to the line of argument that a letter closing a file issued in a procedure relating to the application of Articles 81 EC and 82 EC is in the nature of a decision. It stated that, unlike the rules governing that procedure, Regulation No 659/1999 conferred no procedural rights on complainants prior to the initiation of the formal investigation procedure.

66. The Court of First Instance dismissed the action as inadmissible and ordered Athinaïki Techniki to pay the costs.

IV – The appeal

A – The procedure before the Court and the forms of order sought by the parties

67. Athinaïki Techniki brought an appeal against the contested order by application dated 18 December 2006, lodged with the Registry on 21 December 2006.

68. The Commission and Athens Resort Casino, the intervener, lodged their responses, respectively, on 5 February and 15 March 2007.

69. None of the parties requested a hearing.

70. By letters dated 15 October 2007, the Court invited the parties to express their views, in writing, on the relevance for the outcome of the dispute of:

– the principles arising from the judgment in Commission v Sytraval and Brink’s France ;

– the rules which apply where a complaint is rejected in the context of the procedures relating to the application of Articles 81 EC and 82 EC and in matters relating to anti-dumping.

71. The appellant, the Commission and Athens Resort Casino submitted their responses to the Court, respectively, on 21, 5 and 20 November 2007.

72. The appellant requests the Court to set aside the contested order, grant the forms of order sought by it at first instance and order the Commission and the intervener to pay the costs.

73. The Commission and Athens Resort Casino submit that the Court should dismiss the appeal as unfounded and order the appellant to pay the costs.

B – Pleas in law and arguments of the parties

74. The appellant claims that the Court of First Instance erred in law in ruling, in paragraphs 29 and 30 of the contested order, that the closure by the Commission of the file on the complaint does not constitute a decision.

75. It explains that, in the field of State aid, the Commission takes a decision when it defines its final and reasoned position on the classification of the measure complained of.

76. Athinaïki Techniki submits that the final nature of the closure of the file on a complaint is not called into question by the fact that it is open to the complainant to produce new information.

77. It states, with regard to the statement of reasons, that the disputed closure of the file must be placed in its context. It takes the view that, in the present case, the Commission closed the file on the complaint on the basis of the reasoning that no State aid was granted at the time of the award of a public contract, since the procedure for the award of the public contract in question is transparent and non-discriminatory. The laconic nature of the Commission’s letter of 2 December 2004 was thus intentional because, if it had set out that statement of reasons therein, it would have been evident that the closure of the file on the complaint was in the nature of a decision. The Court of First Instance’s analysis was therefore purely formalistic, in that it concerned itself with the wording of that letter, without taking into account its scope and the context of the case.

78. The Commission disputes that line of argument. It submits that the letter of 2 December 2004 contains merely a notice sent to Athinaïki Techniki pursuant to Article 20 of Regulation No 659/1999. It states that that notice was effected in order to avoid using the decision-making mechanism in the absence of any significant and detailed evidence.

79. The Commission also argues that under Article 25 of Regulation No 659/1999, decisions in matters of State aid are addressed to the Member States and that it is those decisions which, where appropriate, may be challenged by the ‘parties concerned’ within the meaning of Article 88(2) EC and not the letter informing them of the content of such decisions.

80. The Commission also argues that the distinction between decisions and letters of notification is to be found in the case-law, both in the field of State aid and in the field of competition.

81. It also points out that the letter of 2 December 2004 is signed by an official of the institution, not by one of its members, and that that letter does not set out the reasons for closing the file on the complaint.

82. According to the Commission, the appellant’s line of argument really consists in claiming that the Member State concerned has not complied with the rules applicable in matters of public contracts and the action seeks to circumvent the fact that an individual cannot challenge a refusal to initiate an action for failure to fulfil obligations brought against a Member State.

83. Athens Resort Casino also submits that the letter of 2 December 2004 does not constitute an actionable decision for reasons identical to those put forward by the Commission.

84. It also argues that Athinaïki Techniki’s application before the Court of First Instance is inadmissible, because the original of the application was received by the Registry only on 18 February 2005.

85. In response to the question raised by the Court, all the parties argued that the principles established in the judgment in Commission v Sytraval and Brink’s France are relevant in the present dispute.

86. The appellant added that, in accordance with those principles, it must be regarded as being a ‘party concerned’ within the meaning of Article 88(2) EC and as being directly and individually concerned, in so far as its market position has been substantially affected by the aid to which its complaint relates.

87. It also stated that a complainant, in the event of the closure of the file on its complaint in the context of the procedure relating to the application of Articles 81 EC and 82 EC and in matters relating to anti-dumping, is entitled to obtain a reasoned decision. The appellant argued that such a right should exist a fortiori in matters relating to State aid, in so far as the Commission has exclusive competence in that field and the initiation of a formal investigation procedure does not depend on an assessment of appropriateness.

88. The Commission, for its part, inferred from the principles established by the judgment in Commission v Sytraval and Brink’s France that the closure of the file on a complaint is not a decision.

89. It also argued that the rights of complainants in the context of the procedure pursuant to Articles 81 EC and 82 EC and in matters relating to anti-dumping are not applicable in the context of the procedure for monitoring State aid, because each field has its own rules. It referred, in that connection, to the judgment in Commission v max.mobil , (31) in which the Court ruled that the rights conferred on the complainant by Council Regulation No 17 (32) were not applicable to Article 86 EC. (33)

90. The Commission noted that the Community judicature, in its case-law, had inferred that the rejection of complaints in the context of Articles 81 EC and 82 EC is in the nature of a decision from the regulations codifying procedure in that field. (34) It argued that Regulation No 659/1999 contains no comparable provisions. It pointed out that that regulation does not give complainants standing to bring proceedings and provides that all decisions are to be addressed to the Member State from which the measure at issue originates.

91. The Commission stated that its analysis also applies to the rules applicable in matters relating to anti-dumping.

92. Athens Resort Casino’s answers were the same as those of the Commission.

C – My assessment

93. As a preliminary point, it should be noted that, contrary to what is stated in the contested order, the appellant applied to the Court of First Instance not for annulment of the letter of 2 December 2004 but for annulment of the Commission’s decision to close the file on its complaint, which the Commission notified to the appellant in that letter.

94. The action for annulment brought by the appellant before the Court of First Instance therefore relates not to the letter of 2 December 2004 as such, which indeed is purely informative in nature, as the Commission has emphasised, but rather to the closure of the file on the complaint, which took place on 2 June 2004.

95. I, like the appellant, take the view that that closure of the file constitutes an actionable decision. I base that analysis on the following three elements, that is, first, the content of Article 20 of Regulation No 659/1999, read in the light of the other provisions thereof, secondly, the definition of the concept of actionable decision in the case-law and, finally, the case-law on the rights of complainants in the context of the procedure for monitoring State aid.

1. Article 20 of Regulation No 659/1999 and the other relevant provisions thereof

96. Article 20(2) of Regulation No 659/1999, it should be recalled, provides:

‘Any interested party may inform the Commission of any alleged unlawful aid and any alleged misuse of aid. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for taking a view on the case, it shall inform the interested party thereof. Where the Commission takes a decision on a case concerning the subject-matter of the information supplied, it shall send a copy of that decision to the interested party.’

97. It is true that that provision is not expressed in the same terms as those applicable to the handling of a complaint in the context of Articles 81 EC and 82 EC, such as those of Article 7 of Regulation No 773/2004. (35) It is also common ground that Regulation No 659/1999 lays down specific rights not for complainants as such, but only for those who are interested parties. It also seems indisputable that the rules relating to the rights of complainants contained in the regulations which provide for the implementation of Articles 81 EC and 82 EC, such as Regulation No 773/2004, are not applicable as such to the procedure for monitoring State aid, which is the subject-matter of specific codification.

98. However, I take the view that those factors are not sufficient to show that Article 20(2) of Regulation No 659/1999 must necessarily be interpreted as meaning that the closure of the file on a complaint in the field of State aid does not constitute a decision and need simply be notified to the complainant, as the Commission and the intervener argue.

99. Indeed, the wording of Article 20(2) of that regulation and the absence of complainants’ rights in the context of the procedure for monitoring State aid must be understood, in my view, in the light of the fact that that procedure, unlike that applicable to the implementation of Articles 81 EC and 82 EC, consists in a dialogue between the Commission and the Member State concerned.

100. As I have pointed out, even when the Commission gives a decision following a complaint concerning aid which has not been notified to it, the addressee of that decision is the Member State concerned by the measure referred to in the complaint and not the complainant itself.

101. In the light of those considerations, the second sentence of Article 20(2) of Regulation No 659/1999 may therefore be construed as meaning that where the Commission considers, on the basis of information in its possession, that there are insufficient grounds for initiating the formal investigation procedure, it must inform the complainant thereof, so that the latter may, where appropriate, provide additional information. Then, under the third sentence of Article 20(2) of that regulation, where the Commission takes a decision to close the file on the complaint, it must, in the interests of sound administration, send a copy of that decision to the complainant, since the latter is not its addressee.

102. Moreover, that interpretation of Article 20(2) of Regulation No 659/1999 seems wholly consistent with the practice adopted by the Commission in this case.

103. Indeed, according to the account of the facts in the contested order, the Commission, by letter of 16 September 2003, informed Athinaïki Techniki that, on the basis of the information in its possession, there were insufficient grounds for continuing the examination of that case and asked Athinaïki Techniki to send it additional information concerning any aid which was not connected with the tendering of the casino. Subsequently, in the absence of such information, it notified the complainant, by the letter of 2 December 2004, that, since it lacked additional information to justify continuing the investigation, it had, for the purposes of further administrative action, closed the file on the case on 2 June 2004.

104. At this stage of the analysis, it appears to me that Article 20(2) of Regulation No 659/1999 may therefore be interpreted as meaning that the Commission is entitled to close the file on a complaint concerning unlawful aid if it has in its possession insufficient evidence for taking a view. However, the content of that provision does not, in my view, support the assertion that that closure of the file is not a decision.

105. On the contrary, the other relevant provisions of Regulation No 659/1999 tend to support the view that that closure of the file is in the nature of a decision.

106. Accordingly, first, Article 10(1) of that regulation requires the Commission to examine without delay a complaint informing it of unlawful aid. That provision thus reproduces the case-law according to which the Commission is required to conduct a diligent and impartial examination of the complaint. We have seen that that obligation may extend so far as to require it to examine matters of fact and law which were not expressly relied on by the complainant.

107. Secondly, Article 13(1) of that regulation provides that the examination of possible unlawful aid is to result in a decision pursuant to Article 4(2), (3) or (4) of the same regulation.

108. It is true that those two articles make no provision for cases in which the file on a complaint is closed. The absence of such provision in Article 4 of Regulation No 659/1999 is perfectly logical in the light of the fact that that latter article lists the decisions which may be taken following notification by a Member State. Indeed, the notification of aid and the procedure for monitoring State aid provided for by Regulation No 659/1999 have the purpose of allowing the Member State concerned and interested undertakings to know whether or not the planned measure is compatible with the common market and may be implemented. As a result, that notification must necessarily be followed by a Commission decision finding that the notified measure (i) is not aid, (ii) constitutes aid compatible with the common market, or (iii) raises doubts as to such compatibility and requires a formal investigation procedure to be initiated.

109. The Commission therefore cannot close without further action the file on a notification from a Member State. If the notification is incomplete, Article 5 of Regulation No 659/1999 provides that the Commission must request from the Member State concerned the necessary additional information and that, if that information is not provided, that notification is to be deemed to be withdrawn.

110. However, the file on a complaint alleging unlawful aid must be capable of being closed without further action if the Commission has in its possession insufficient evidence for taking a view by means of one of the decisions set out in Article 4 of Regulation No 659/1999, since the complainant is not in the same situation as a Member State which notifies the existence of aid.

111. Although the possibility of closure of the file on a complaint is not covered by Article 4 of that regulation, to which Article 13(1) thereof refers, the fact remains that that Article 4 and Article 10(1) of Regulation No 659/1999 confirm, in my view, that that closure of the file is in the nature of a decision, by providing that any complaint concerning allegedly unlawful aid must be the subject-matter of a diligent examination and that that examination must culminate in a decision.

112. That analysis seems to me to be confirmed by the definition of the concept of actionable decision in the case-law.

2. The concept of actionable decision in the case-law

113. The Court has consistently held that only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment under Article 230 EC. (36)

114. It is also settled case-law that in order to ascertain whether or not a measure produces such effects it is necessary to look to its substance. (37)

115. In the judgment in SFEI and Others v Commission, (38) the Court held that a decision to close the file on a complaint based on Article 82 EC constitutes an actionable decision for the following reasons. First of all, an institution empowered to find that there has been an infringement and to inflict a sanction in respect of it and to which private persons may make complaint, as is the case with the Commission in the field of competition, necessarily adopts a measure producing legal effects when it terminates an investigation initiated upon a complaint by such a person. A decision to close the file on a complaint cannot be described as preliminary or preparatory. In fact, unlike a communication which is intended to afford to the undertakings concerned the opportunity of making known their point of view on the Commission’s statement of objections and which does not prevent the Commission from altering its position, the decision to close the file on a complaint is the final step in the procedure; it cannot be followed by any other decision amenable to annulment proceedings. (39)

116. It seems to me that those reasons are perfectly capable of being applied to the closure of the file on a complaint in the context of the procedure applicable in matters relating to State aid.

117. Accordingly, first of all, in the context of that procedure, a private individual may make a complaint to the Commission, which is empowered to find that there has been an infringement and to inflict a sanction in respect of it if it should be found that the measure complained of in fact constitutes State aid incompatible with the common market.

118. Next, where the Commission closes the file on a complaint concerning alleged State aid, it necessarily adopts a measure producing legal effects, since that closure of the file terminates the preliminary examination procedure which it had to initiate upon that complaint, in accordance with the case-law and Article 10 of Regulation No 659/1999.

119. Finally, it does appear that the closure of the file on a complaint concerning alleged State aid, such as that made by the appellant, is the final step in the preliminary investigation initiated upon that complaint. That closure of the file, like the closure of the file on a complaint based on Article 82 EC, cannot be followed by any other decision amenable to annulment proceedings.

120. The fact that that closure of the file may be reconsidered if an applicant produces new information does not call into question that analysis, in so far as, in the absence of such information, the preliminary examination is in fact closed.

121. In the light of the Court’s reasons for recognising that the closure of the file on a complaint based on Article 82 EC is an actionable decision, the closure of the file on a complaint concerning alleged State aid deserves, in my view, the same classification.

122. That analysis seems to me all the more justified since the Commission has exclusive competence in matters relating to State aid and since the latter is the subject of a prohibition in principle. We have seen that the Community judicature, in its case-law, has inferred that that institution had an obligation to conduct a diligent investigation of any complaint and that it was required to initiate a formal investigation procedure if the measure complained of was found to be aid contrary to the common market or capable of being contrary to it. I have noted that those obligations seek to ensure that no aid contrary to the common market may be implemented.

123. It follows that the Commission, by choosing to close the file on a complaint, necessarily considered that it was not necessary to initiate a formal investigation procedure or to adopt one of the two other decisions referred to in Article 4 of Regulation No 659/1999.

124. Moreover, the fact that that closure of the file was not formalised in a decision forwarded to the Member State concerned, contrary to the requirements of Article 27 of that regulation, cannot be relied on to deprive that closure of the file of its nature as a decision. That classification must be dependent solely on the substance of the measure examined and not on whether the Commission has complied with the obligations relating to its notification.

125. Finally, I take the view that recognising that the closure of the file on a complaint concerning alleged State aid is in the nature of a decision is also consistent with the case-law relating to the rights of complainants in the context of the procedure for monitoring State aid.

3. The case-law relating to the rights of complainants in the context of the procedure for monitoring State aid

126. As we have seen, where the Commission, without initiating the formal investigation procedure, considers that the measure complained of by the complaint does not constitute aid or constitutes aid compatible with the common market, that complainant, if he is a ‘party concerned’ within the meaning of Article 88(2) EC, is entitled to challenge that decision before the Community Courts in order to defend his procedural rights. (40) That right of action, established in the judgments in Cook v Commission (41) and Matra v Commission , (42) has since been consistently upheld.

127. Consequently, by making that legal remedy available, the Court sought to make the procedural rights guaranteed by Article 88(2) EC the subject of specific protection and to make them subject to judicial review. By thus extending access to the Community Courts, the Court also strengthened the monitoring of the effective application of the law in matters relating to State aid, by allowing a competitor, albeit potential, of the beneficiary of the disputed measure to challenge the Commission’s assessment that the compatibility of that measure with the Treaty raised no serious difficulties.

128. The effects of that case-law would be significantly reduced if a complainant were not also entitled to challenge the closure of the file on his complaint by means of an action for annulment.

129. Indeed, such a closure of the file produces, for the complainant, effects comparable to those of a decision finding that the contested measure is aid compatible with the common market or does not constitute aid. It allows the implementation of that measure or its effects to continue, without that complainant having been able to submit his comments to the Commission.

130. The cohesion of the system established by the case-law relating to the defence of procedural rights therefore requires, in my view, that the complainant may also challenge the Commission’s assessment that the information in its possession is not sufficient to initiate a formal investigation procedure. Moreover, judicial review of the effective application of Community law is no less important in that situation than it is where the Commission adopts a decision on the classification of the measure or its compatibility with the Treaty.

131. I infer from this that the closure of the file on a complaint, like decisions taken under Article 4(2) and (3) of Regulation No 659/1999, must be regarded as an actionable decision in order to allow the complainant to safeguard the procedural rights conferred on him by Article 88(2) EC.

132. Contrary to that analysis, the Court of First Instance, in the contested order, took the view that the non-actionable nature of that closure of the file cannot deprive citizens of access to Community justice, since the complainant may provide additional information to support his complaint. It explained that, in the event that that information was sufficient, the Commission would then be required to define its position on the State measure in question by adopting a decision within the meaning of Article 4 of Regulation No 659/1999, thus affording the complainant the possibility of bringing an action for annulment under the fourth paragraph of Article 230 EC. In addition, the Court of First Instance stated that the complainant is also able to bring an action for failure to act under the third paragraph of Article 232 EC. (43)

133. I do not find that analysis convincing. The fact that it is open to the complainant to provide the Commission with additional information and the assertion that the latter is then required to adopt a decision if that information is sufficient do not afford equivalent protection, since the specific issue being examined in this case is the possibility of judicial review of the Commission’s assessment concerning whether or not the information in its possession is sufficient in nature.

134. Similarly, the defence of a complainant’s procedural rights, where the Commission has decided to close the file on his complaint, is not covered by an action for failure to act.

135. As we have seen, in the context of the procedure for monitoring State aid, the Commission, where a complaint is made to it, must be entitled to close the file on the complaint if it considers that it does not have in its possession sufficient information to take one of the other decisions set out in Article 4 of Regulation No 659/1999, although that possibility is not expressly referred to.

136. The closure of the file on a complaint therefore constitutes the definition of a position which brings the procedure for examining that complaint to a final conclusion.

137. In those circumstances, an action for failure to act is not the appropriate remedy in respect of that closure of the file. In the system of remedies provided for by Community law, the purpose of an action for failure to act is to obtain a judicial declaration that a Community institution has failed to act where that failure to act is contrary to the Treaty. (44) Since I acknowledge that the closure of the file on a complaint constitutes an acceptable position in the context of the procedure for monitoring State aid, an action for failure to act against that closure of the file is inadmissible. (45) In other words, the Court of First Instance cannot at the same time decide that the closure of the file on a complaint is the definition of a position under Regulation No 659/1999 and argue that such a closure of the file constitutes a failure to act covered by an action for failure to act.

138. I would point out, in that regard, that in the case giving rise to the judgment in Air One v Commission , the file on the complaint was not closed and the complaint was being examined. The Commission had forwarded the complaint to the Italian authorities and had given them a period in which to reply to it. That period had not expired when Air One formally invited that institution to define its position on the basis of Article 232 EC.

139. In the light of all the foregoing considerations, I take the view that the closure by the Commission of the file on the complaint made by the appellant constitutes an actionable decision. The appeal brought by the appellant is therefore well founded and the contested order must, in consequence, be set aside.

V – The consequences of setting aside the order

140. In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, the latter may, in the event that the decision of the Court of First Instance is quashed, itself give final judgment in the matter, where the state of the proceedings so permits.

141. The Commission relied on a second plea in support of its objection of inadmissibility of the action for annulment brought by Athinaïki Techniki, alleging the late submission of the application.

142. I take the view that the Court has at its disposal all the information necessary to give a ruling on that plea.

A – Arguments of the parties

143. The Commission notes that the Registry of the Court of First Instance, in its letter of 1 March 2005, informed the appellant that the date of lodgement of the application to be taken into consideration was the date on which the original was lodged, that is 18 February 2005, on the ground that the copy received by fax on 11 February 2005 did not constitute an identical copy of that original, as was demonstrated by the comparison of the signatures appended to each of those documents.

144. The Commission, supported by Athens Resort Casino, infers from this that the action was brought outside the period of 2 months and 10 days, since that period started to run when the letter of 2 December 2004 was received, or on 6 December 2004 at the latest.

145. The Commission and Athens Resort Casino also argue that the appellant implicitly acknowledged that it had brought its action out of time by asking the Registry, by letter of 16 March 2005, to take into account the version of the application received at the Registry by fax on 11 February 2005.

146. The appellant denies that its action was out of time on the ground that, in accordance with the case-law, it is for the party which relies on the late submission of the application to provide evidence of the date on which the contested measure was notified. The Commission, in this case, has not established the date on which the contested measure came to the knowledge of the complainant.

B – My assessment

147. Unlike the Commission, I do not believe that the appellant’s action must be declared inadmissible on the ground that it was brought after the expiry of the prescribed period. I base that analysis on the following considerations.

148. It is not disputed that, under the fifth paragraph of Article 230 EC, a private individual’s action for annulment of a decision which is not addressed to him must be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Moreover, under Article 102(2) of the Rules of Procedure of the Court of First Instance, the prescribed time-limits are to be extended on account of distance by a single period of 10 days.

149. In so far as the Commission’s decision closing the file on Athinaïki Techniki’s complaint was not published or notified to the latter, but was simply brought to its knowledge by the letter of 2 December 2004, the matter which must be resolved is whether the action for annulment was brought within the period of 2 months and 10 days from receipt of that letter.

150. The Commission bases its arguments on the following two points, that is, on the one hand, the receipt of the letter of 2 December 2004, which set the period for the action running, took place on 6 December 2004 at the latest and, on the other hand, the action was brought only on 18 February 2005, since the sending of the application by fax on 11 February 2005 cannot be taken into account.

151. I consider that neither of those two points can be upheld.

152. First, the version of the application received at the Registry of the Court of First Instance by fax on 11 February 2005 must, in my view, be taken into consideration for the purposes of determining the date of the action.

153. It should be recalled that, under Article 21 of the Statute of the Court of Justice, a case must be brought before the Community Court by a written application addressed to the Registrar, which must contain certain particulars and be accompanied by several documents.

154. Under Article 43(1) of the Rules of Procedure of the Court of First Instance, the original of every pleading must be signed by the party’s agent or lawyer. Article 43(3) provides that, in the reckoning of time-limits for taking steps in proceedings only the date of lodgment at the Registry of the Court of First Instance is to be taken into account.

155. Article 43(6) of those Rules of Procedure provides, for its part, for the possibility of sending the application to that Registry by other technical means of communication. It provides:

‘Without prejudice to the provisions of paragraphs 1 to 5, the date on which a copy of the signed original of a pleading … is received at the Registry by telefax or other technical means of communication available to the Court of First Instance shall be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings, provided that the signed original of the pleading, accompanied by the annexes and copies referred to in the second subparagraph of paragraph 1, is lodged at the Registry no later than 10 days thereafter. Article 102(2) shall not be applicable to this period of 10 days.’

156. Article 43(6) of the Rules of Procedure of the Court of First Instance thus provides that receipt by the Registry of the Court of First Instance of the copy of the application by fax is to be treated in the same way as the lodgment of the original of the application provided that that original is actually lodged there within 10 days.

157. Moreover, compliance with that condition logically means that the version sent to the Registry of the Court of First Instance by fax should be the certified copy of the original lodged subsequently. It is therefore important that the version sent by fax is a photographic copy of the original version and not a document having the same content in a different form.

158. Those requirements are set out very clearly in the Practice Directions to Parties. (46) Paragraph I(A)(2) and (3) of those directions states:

‘In the case of transmission by email, only a scanned copy of the signed original will be accepted. A document despatched in the form of an ordinary electronic file which is unsigned or bears an electronic signature or a facsimile signature generated by computer will not be treated as complying with Article 43(6) of the Rules of Procedure. …

…

The lodgment of a document by fax or email will be treated as complying with the relevant time-limit only if the signed original of that document reaches the Registry prior to the expiry of the period of 10 days following such lodgment, as specified in Article 43(6) of the Rules of Procedure. The signed original must be sent without delay, immediately after the despatch of the copy, without any corrections or amendments, even of a minor nature, being made thereto. In the event of any discrepancy between the signed original and the copy previously lodged, only the date of lodgment of the signed original will be taken into consideration.’

159. Under Article 7(1) of the Instructions to the Registrar of the Court of First Instance of the European Communities, (47) it is for the Registrar of the Court of First Instance to ensure compliance with those requirements.

160. The Registrar of the Court of First Instance took the view, in this case, that the version of the application received at the Registry of the Court of First Instance by fax on 11 February 2005 was not an identical copy of the original lodged on 18 February 2005, because the signature on the last page of that version was not in exactly the same place as the signature on the original.

161. The appellant’s lawyer, in correspondence dated 16 March 2005, explained that that difference was due to the fact that the last page of the original of the application had been damaged while being faxed, with the result that he had had to replace it. It is common ground that the version of the application received on 11 February 2005 differs from the original only in the positioning of the lawyer’s signature on the last page.

162. Unlike the Commission and Athens Resort Casino, I take the view that the requirement laid down in Article 43(6) of the Rules of Procedure of the Court of First Instance that the version sent by fax should be identical to the original of the application lodged with the Registry of the Court of First Instance must be regarded as satisfied.

163. The scope of that requirement must, in my view, be assessed in the light of its two objectives, which are substantive and formal in nature.

164. The purpose of that requirement, from a substantive standpoint, is to ensure that the possibility of bringing an action before the Community Courts by one of the new means of communication, provided for in Article 43(6) of the Rules of Procedure of the Court of First Instance, does not call into question the obligatory nature of the procedural time-limits or the requirements of legal certainty and equality among litigants, which those time-limits are intended to safeguard. It is not in dispute that those time-limits and their strict application have the purpose of safeguarding legal certainty and avoiding any discrimination or arbitrary treatment in the administration of justice. (48)

165. Article 43(6) of the Rules of Procedure of the Court of First Instance therefore seeks to enable an applicant to send his application to the Registry of the Court of First Instance by fax within the period of 2 months and 10 days, without that possibility in fact resulting in his being granted an additional period to improve his application or amend it in any way whatsoever.

166. From a formal standpoint, the requirement that the version sent by fax should be identical to the original of the application lodged with the Registry of the Court of First Instance seeks to allow the latter, when the original of the application is forwarded to it, to verify that that original is exactly the same as the version sent by fax simply by means of a rapid and superficial examination, without an in-depth examination of their content.

167. However, in this case, I do not believe that the mere difference in the signatures on the version sent by fax and the original lodged with the Registry of the Court of First Instance undermines the two objectives of that requirement.

168. First, that difference does not relate to the substance of the application sent within the time-limit for the action. Secondly, neither is there any question of any amendment having been made to the typewritten content of the document, which might have raised doubts as to whether the two versions in question were identical and obliged the Registry of the Court of First Instance to verify in detail whether this was so, page by page. The mere difference in the positioning of the signature on the last page of the original of the application was not capable of casting doubt on the whole of it.

169. In those circumstances, I take the view that the appellant has not infringed the requirements of Article 43(6) of the Rules of Procedure of the Court of First Instance and that the sending of the version of the application by fax on 11 February 2005 must be taken into consideration in determining the date of the action. It therefore seems that the latter was brought within the period of 2 months and 10 days following 2 December 2004, with the result that it is admissible, whatever the date on which the appellant received the letter from the Commission dated on the same day.

170. Secondly, I think that the starting point of the time-limit for the action of 2 months and 10 days cannot be determined as 6 December 2004 at the latest, as the Commission argues.

171. It is clear from the case-law that it is for the party pleading that the action is out of time to provide evidence of the date on which time began to run. (49) It also follows from this that, where it is not possible to ascertain with any certainty the date on which the applicant first knew exactly what was in the measure that he is contesting and what were the reasons on which it was based, where that measure was neither published nor notified, it must be held that the period prescribed for initiating proceedings began to run, at the latest, from the date on which it can be established that the applicant had such knowledge. (50)

172. We have seen that, in the present case, the letter of 2 December 2004 informing the appellant of the closure of the file on its complaint was not sent to it by registered letter with a form for acknowledgment of receipt. The date on which it actually received that letter is not known and it appears difficult to infer it exactly from the correspondence sent by the appellant to the Registrar of the Court of First Instance on 16 March 2005.

173. For that reason, the action for annulment brought by Athinaïki Techniki is admissible, even if the date on which the action was brought should be determined as 18 February 2005.

174. Having regard to those considerations, I take the view that the objection of inadmissibility raised by the Commission must be dismissed.

175. I also invite the Court to refer the case back to the Court of First Instance for judgment on Athinaïki Techniki’s form of order seeking annulment of the Commission’s decision of 2 June 2004 relating to the closure of the file on its complaint and to order that the costs be reserved. (51)

VI – Conclusion

176. In the light of the foregoing considerations, I propose that the Court:

– set aside the order of the Court of First Instance of the European Communities of 26 September 2006 in Case T-94/05 Athinaïki Techniki v Commission ;

– dismiss as unfounded the objection of inadmissibility raised by the Commission of the European Communities before the Court of First Instance of the European Communities;

– refer the case back to the Court of First Instance for judgment on Athinaïki Techniki’s form of order seeking annulment of the Commission’s decision of 2 June 2004 relating to the closure of the file on its complaint;

– order that the costs be reserved.

(1) .

(2) – Case T‑94/05 (not published in the ECR); ‘the contested order’.

(3) – ‘Athinaïki Techniki’ or ‘the appellant’.

(4) – Council regulation of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1).

(5) – Article 87(2) EC refers to the aid which is automatically compatible with the common market. That is aid having a social character, granted to individual consumers without discrimination related to the origin of the products concerned, aid to make good the damage caused by natural disasters or exceptional occurrences and aid granted to certain areas of the Federal Republic of Germany in order to compensate for the economic disadvantages caused by the division of Germany. Article 87(3) EC refers, for its part, to aid which may be declared compatible with the common market. That is, in particular, aid to promote the economic development of areas in which there is serious underemployment and aid to promote the execution of a project of common European interest.

(6) – Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraphs 36 and 38.

(7) – Article 2.

(8) – Article 5(1) of Regulation No 659/1999.

(9) – Article 1(f) of Regulation No 659/1999.

(10) – See, to that effect, Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I-5479, paragraph 72.

(11) – Case 6/64 Costa [1964] ECR 585, 596, and Belgium and Forum 187 v Commission , paragraphs 73 and 74.

(12) – Commission v Sytraval and Brink’s France , paragraph 62.

(13) – Ibid.

(14) – Case C-78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I-10737, paragraph 34 and case-law cited.

(15) – Commission v Sytraval and Brink’s France , paragraph 64.

(16) – Ibid., paragraph 39.

(17) – Case T-395/04 Air One v Commission [2006] ECR II-1343, paragraph 61.

(18) – Ibid.

(19) – Commission v Sytraval and Brink’s France , paragraph 45.

(20) – Commission v Aktionsgemeinschaft Recht und Eigentum , paragraph 36 and case-law cited.

(21) – Ibid., paragraph 34 and case-law cited.

(22) – Commission v Sytraval and Brink’s France , paragraph 40, and Commission v Aktionsgemeinschaft Recht und Eigentum , paragraph 35.

(23) – Commission v Aktionsgemeinschaft Recht und Eigentum , paragraph 35.

(24) – Case 25/62 [1963] ECR 95.

(25) – Ibid., p. 223. See, also, Commission v Aktionsgemeinschaft Recht und Eigentum , paragraph 37 and case-law cited. In points 104 to 112 of my Opinion in Joined Cases C-75/05 P and C-80/05 P Germany and Others v Kronofrance , pending before the Court, I expressed my disagreement with that restriction on the right of action of the parties concerned. That restriction has the effect of making the defence of procedural rights an end in itself whereas it should, in my view, be merely the key affording access to the Community judicature in order to review the compatibility of the contested measure with the rules of the Treaty concerning State aid.

(26) – Commission v Aktionsgemeinschaft Recht und Eigentum , cited above, paragraph 37.

(27) – See, for a recent application, Case C-260/05 P Sniace v Commission [2007] ECR I-0000, paragraphs 53 and 54.

(28) – Air One SpA (‘Air One’), an airline company operating scheduled flights between Italian towns, submitted, by letter of 22 December 2003, a complaint to the Commission alleging unlawful aid granted by the Italian authorities to the air carrier Ryanair. Following an exchange of correspondence, Air One formally called upon the Commission to define its position with regard to its complaint in June 2004. On 5 October 2004, it brought an action for failure to act.

(29) – Air One v Commission , paragraphs 30 and 34.

(30) – ‘Athens Resort Casino’.

(31) – Case C-141/02 P [2005] ECR I-1283, paragraphs 69 to 72.

(32) – Council Regulation of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

(33) – Commission v max.mobil , paragraph 71.

(34) – It refers to Article 6 of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81] and [82] of the EC Treaty (OJ 1998 L 354, p. 18). It points out that those rights are now set out in Article 7 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18), which provides:

‘1. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for acting on a complaint, it shall inform the complainant of its reasons and set a time-limit within which the complainant may make known its views in writing. The Commission shall not be obliged to take into account any further written submission received after the expiry of that time-limit.

2. If the complainant makes known its views within the time-limit set by the Commission and the written submissions made by the complainant do not lead to a different assessment of the complaint, the Commission shall reject the complaint by decision.

3. If the complainant fails to make known its views within the time-limit set by the Commission, the complaint shall be deemed to have been withdrawn.’

(35) – That latter provision expressly provides, it should be recalled, that where the Commission considers that there are insufficient grounds for acting on a complaint, it must inform the complainant and set a time-limit within which the complainant may make known its views. Then, if the complainant does so within the time-limit set and the submissions made by the complainant do not lead to a different assessment of the complaint, the Commission must reject the complaint by decision.

(36) – Case C-147/96 Netherlands v Commission [2000] ECR I-4723, paragraph 25 and case-law cited. See, for a recent application, the order in Case C-163/06 P Finland v Commission [2007] ECR I-5127, paragraph 40.

(37) – Netherlands v Commission , paragraph 27.

(38) – Case C-39/93 P [1994] ECR I-2681.

(39) – Paragraphs 27 and 28.

(40) – Commission v Sytraval and Brink’s France , paragraph 40, and Commission v Aktionsgemeinschaft Recht und Eigentum , paragraph 35.

(41) – Case C-198/91 [1993] ECR I-2487.

(42) – Case C-225/91 [1993] ECR I-3203.

(43) – Paragraph 31 of the contested order.

(44) – Joined Cases C-15/91 and C-108/91 Buckl and Others v Commission [1992] ECR I-6061, paragraph 14.

(45) – See, in that regard, Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 21.

(46) – OJ 2007 L 232, p. 7. Those directions may also be consulted on the internet site: http://curia.europa.eu/en/instit/txtdocfr/index_tpi.htm.

(47) – OJ 2007 L 232, p. 1. Those instructions may also be consulted on the internet site: http://curia.europa.eu/en/instit/txtdocfr/index_tpi.htm.

(48) – See, in particular, the order in Case C-242/07 P Belgium v Commission [2007] ECR I-0000, paragraph 16 and case-law cited.

(49) – Joined Cases 193/87 and 194/87 Maurissen and Union Syndicale v Court of Auditors [1989] ECR 1045, paragraph 46, and order in Case T‑263/97 Gal Penisola Sorrentina v Commission [2000] ECR II-2041, paragraph 47.

(50) – Case C-480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I‑265, paragraph 49.

(51) – See, with regard to costs, Case C-193/01 P Pitsiorlas v Council and ECB [2003] ECR I-4837.