CELEX: C2002/131/14
Language: en
Date: 2002-06-01 00:00:00
Title: Case C-110/02: Action brought on 25 March 2002 by Commission of the European Communities against Council of the European Union

C 131/8                 EN                    Official Journal of the European Communities                                          1.6.2002
Action brought on 25 March 2002 by Commission of the                           Although the Treaty empowers the Council to intervene
European Communities against Council of the European                           exceptionally where what is required is an assessment of
                               Union                                           the compatibility of a measure with the common market,
                                                                               it does not allow it to substitute its own assessment for
                                                                               that of the Commission as to the existence of State aid.
                          (Case C-110/02)
                                                                               By adopting the contested decision, the Council has itself
                          (2002/C 131/14)                                      bypassed, and allowed a Member State to bypass, the
                                                                               remedy under Article 230 and the applicable time-limits
                                                                               in order to negative the effects of a decision which could
                                                                               no longer be annulled by the Community judicature.
An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 25 March 2002 by the Commission of the European                  —     Infringement of the Treaty and of general principles of
Communities, represented by Francisco Santaolalla Gadea,                       Community law: the contested decision constitutes a
Dimitris Triantafyllou and Vittorio Di Bucci, acting as Agents,                flagrant infringement of Article 14 of Council Regulation
with an address for service in Luxembourg.                                     659/99 (2) since, in this specific case, it is preventing the
                                                                               effective recovery of aid by authorising aid in an equi-
                                                                               valent amount.
The applicant claims that the Court should:
                                                                               The contested decision also upsets the institutional equi-
—     annul Council Decision 2002/114/EC (1);                                  librium established by the Treaty between the Com-
                                                                               mission and the Council in that the latter has usurped the
—     order the defendant to pay the costs.                                    supervisory role which, other than within the narrowly-
                                                                               bounded exception provided for in Article 88(2), falls
                                                                               within the purview of the Commission.
Pleas in law and main arguments                                                The conduct in question also upsets the institutional
                                                                               balance between the ‘executive’ institutions and the
                                                                               Community judicature and, more generally, undermines
—     Lack of competence of the Council: the underlying                        the jurisdictional system set up by the Treaty.
      assumption of the Treaty is that it is for the Commission,
      as a general rule, to monitor State aid. It is true to say
      that in the framework of such a monitoring system                        There has also been an infringement of the principle of
      the third subparagraph of Article 88(2) EC remains                       legal certainty as embodied in the procedural time-limits.
      applicable, but only as a departure from the usual
      mechanism, that is to say as an extraordinary power
      under the general law which must be interpreted restric-
      tively. Since it is not explicitly provided for, instances of      —     (In the alternative): manifest error of assessment and
      Council decisions which come after Commission                            misuse of powers as regards the existence of exceptional
      decisions must be resolved in accordance with the                        circumstances.
      principles which underlie the explicit conflicts rule con-
      tained in the Treaty, namely: that there is no order of
      precedence in conflicts of competences, no preemption              —     (In the further alternative): lack of or erroneous statement
      and no power to revoke or amend. Once the Commission                     of reasons.
      has adopted a final decision, the Council can no longer
      intervene. Likewise and for the same reasons the Council
      also has no power to negative the effects of a final
      decision of the Commission, as in the present case, by
      emptying it of its substance by authorising the grant of
                                                                         (1) Council Decision 2002/114/EC of 21 January 2002 authorising
      aid in an amount equal to that of the aid declared to be               the Government of Portugal to grant aid to Portuguese pig farmers
      incompatible.                                                          who were beneficiaries of the measures granted in 1994 and
                                                                             1998 (OJ L 43 of 14.2.2002, p. 18).
—     Misuse of powers and abuse of process: where the                   (2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
      Council uses its powers of authorisation not just to grant             down detailed rules for the application of Article 93 of the EC
                                                                             Treaty (OJ L 83 of 27.3.1999, p. 1).
      authorisation, in exceptional circumstances, for aid which
      would otherwise be, in all likelihood, declared incompat-
      ible by the Commission, but, after the adoption of the
      Commission decision, with a view to nullifying its effects,
      it is exercising its powers with a purpose other than that
      intended by the Treaty.