WRITTEN QUESTION E-2532/97 by Gunilla Carlsson (PPE) to the Commission (24 July 1997)

Subject: State aid and openness

Pursuant to Article 93(2) and (3) of the EC Treaty, state aid to industry must be notified to the Commission, which is then to examine whether it is compatible with other parts of the Treaty and does not, for instance, run counter to the competition rules mentioned in Article 92(1). The information Member States supply to the Commission is confidential and goes no further. It is therefore not possible for anyone else to monitor whether the aid does in fact distort competition or not.

Does the Commission consider this lack of openness to be compatible with an effectively monitored competition-based market?

Answer given by Mr Van Miert on behalf of the Commission (11 September 1997)

The Commission agrees that whenever the views of third parties are available in state aid cases, the Commission should take appropriate account of these. However the Commission wishes to recall that state aid proceedings, as foreseen by the EC Treaty, are based on a dialogue between the Commission and the Member State concerned and that the addressee for any decision resulting from such proceedings is that Member State.

According to the case law of the Court of justice the Commission is only obliged to invite third party comments pursuant to Article 93(2) of the EC Treaty after opening the formal investigation procedure. Where the Commission, after a preliminary assessment, has no doubts as to the compatibility of the aid with the common market it is not obliged to seek the view of third parties. In any event in such cases inviting third party comments would be disproportionate in that this would delay the procedure although the aid does not unduly affect competition in the common market. In this connection, some 60% of all Commission decisions in the field of state aid approve notified schemes that are in line with the Commission's guidelines and frameworks. Notified individual cases and unnotified aid (mostly individual cases) each account for half the remaining 40%. As for the former, the Commission also observes that Member States increasingly take full account of the Commission's assessment criteria as laid down in guidelines and frameworks.

Moreover, the Commission considers that protecting the confidentiality of Member States' notifications and correspondence with Member States is often required to safeguard commercial interests of state aid beneficiaries and does not hamper the efficiency of state aid control.

Furthermore, the Commission's decisions in the state aid field are subject to judicial review by the Court of justice. Pursuant to Article 190 of the EC Treaty, the Commission states the reasons on which it decides on the compatibility of aid with the common market to allow for proper judicial review of its decision. Member States and any interested third party have access to Commission decisions on state aid and may therefore ascertain whether the Commission has acted in accordance with the provisions of the Treaty. Where a Member State or an interested party directly and individually concerned by a Commission decision consider that the Commission has not applied the rules correctly they may pursuant to Article 173 of the EC Treaty institute proceedings against that decision before the Court of justice.