Keywords

Summary



Keywords

1. Actions for annulment – Time-limits – Point from which time starts to run – Publication or notification – Day on which a measure came to the knowledge of the applicant – Subsidiary nature – Commission decision addressed to a Member State finding State aid compatible with the common market without initiating the formal investigation procedure – Publication – Definition

(Art. 230, fifth para., EC; Council Regulation No 659/1999, Art. 26(1))

2. Acts of the Community institutions – Statement of reasons – Obligation – Scope – Consideration of the context

(Art. 253 EC)

3. Transport – Maritime transport – Freedom to provide services – Maritime cabotage – Cabotage with regard to the Canary archipelago – Temporary exemption from the implementation of Regulation No 3577/92 – Effect on the Commission’s power to propose appropriate measures regarding the arrangements for the provision of maritime services between the Canary Isles

(Art. 88(1) EC; Council Regulation No 3577/92, Art. 6(2))

4. Competition – Undertakings entrusted with the operation of services of general economic interest – Task requiring an act of public authority – Concession to operate a public service – Unilateral withdrawal from the provision of a service – No effect

(Art. 86(2) EC)

5. Competition – Undertakings entrusted with the operation of services of general economic interest – Definition of services of general economic interest – Discretion of the Member States – Review by the Commission only in the event of manifest error

(Art. 86(2) EC; Commission communication on services of general economic interest in Europe, point 22)

6. Competition – Undertakings entrusted with the operation of services of general economic interest – Recourse to a tendering procedure not necessary to assign such a task to an undertaking

(Art. 86(2) EC)

7. Competition – Undertakings entrusted with the operation of services of general economic interest – Evaluation of additional costs generated by the public service task – Discretion of the Commission – Judicial review – Limits

(Art. 86(2) EC)

8. Community law – Principles – Equal treatment – Discrimination – Definition

Summary

1. It is clear from the wording of the fifth paragraph of Article 230 EC that the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point of the period prescribed for instituting proceedings, is subsidiary to the criteria of publication or notification of the measure. It is not therefore appropriate to apply the criterion of the day on which the contested measure came to the knowledge of an applicant, which is provided for in the alternative in the fifth paragraph of Article 230 EC, when a decision is published in the Official Journal of the European Union .

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 of the European Union enabling interested parties to identify the decision in question and notifying them of this possibility of access via the internet must be considered as publication for the purposes of that article.

Such is the case with regard to the publication in the Official Journal of the European Union , pursuant to Article 26(1) of Regulation No 659/1999 laying down detailed rules for the application of Article [88] EC, of summary notices relating to State aid taken pursuant to Article 4(2) and (3) of that regulation, stating that the text of the decision, from which all confidential information has been removed, is available on the Commission’s website in the authentic language version or versions.

(see paras 73, 78, 80-82)

2. The statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirement to state reasons must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

(see para. 95)

3. According to Article 6(2) of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), no liberalisation of cabotage in the Canary Isles was required before 1 January 1999. In those circumstances, the Commission could not effectively propose that the Spanish authorities amend the arrangements for the provision of maritime services between the Canary Isles provided for by a contract governing the operation and provision of maritime services of national interest for a period of 20 years beginning on 1 January 1978.

(see para. 175)

4. Although for an undertaking to be regarded as entrusted with the operation of a service of general economic interest within the meaning of Article 86 EC it must have been assigned that task by an act of public authority, that assignment may be made through a public service concession. Since the latter can be granted only if accepted by the concessionary, the fact that an undertaking is entrusted with the operation of a service of general economic interest cannot be challenged on the ground that it was involved in the process by which that task was entrusted to it. Nor can it be challenged on the ground that the undertaking withdrew provision of part of that service, since the unilateral withdrawal from the provision of a service is, as a matter of principle, compatible with the imposition of public service obligations.

(see paras 186, 188-189)

5. Member States have wide discretion to define what they regard as services of general economic interest. Hence, the definition of such services by a Member State can be questioned by the Commission only in the event of manifest error.

(see para. 216)

6. It is not apparent either from the wording of Article 86(2) EC or from the case-law on that provision that a general interest task may be entrusted to an operator only as a result of a tendering procedure.

(see para. 239)

7. In assessing complex economic facts, the Commission has wide discretion for evaluating the additional costs due to provision of a public service by a undertaking in connection with the application of Article 86(2) EC. It follows that the review which the Court is called upon to perform in relation to the Commission’s assessment must be confined to verifying the accuracy of the facts found and establishing that there is no manifest error of assessment.

(see para. 266)

8. Discrimination consists in particular in treating like cases differently, involving a disadvantage for some operators in relation to others, without that difference in treatment being justified by the existence of substantial objective differences.

(see para. 271)