Dimosia Epicheirisi Ilektrismou AE (DEI) v European Commission.
Date: 2017-05-31
29


The Court thus held that Article 13(1) of Regulation No 659/1999 obliges the Commission, once any additional comments have been lodged by interested parties, or the reasonable period has expired, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, raising no objections, or initiating the formal investigation procedure (judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 63).
31


In so doing, the Commission adopted a definitive position on the applicant’s request for a finding of infringement of Articles 107 TFEU and 108 TFEU. Moreover, as the 2014 decision prevented the applicant from submitting its observations in a formal examination procedure, it produced binding legal effects capable of affecting the applicant’s interests. Accordingly, that decision constitutes an act open to challenge for the purposes of Article 263 TFEU (see judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 66).
32


Although the Court has held that the Commission may withdraw a decision to take no further action on a complaint regarding alleged unlawful aid in order to remedy illegality affecting that decision (judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 70), the adoption of a purely confirmatory decision cannot be regarded as being such a withdrawal.
33


In that regard, it must be recalled that a measure is purely confirmatory of an existing measure if it contains no new factors as compared with the existing measure (judgment of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraph 69 and the case-law cited).
34


However, a decision by which all or part of the claim of the person concerned is upheld is not confirmatory of a previous rejection decision (see, to that effect, judgment of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 9).
35


Furthermore, an action against a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned because no action has been brought within the prescribed period. Otherwise, the person concerned is entitled to challenge either the confirmed decision, or the confirmatory decision, or both (judgment of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 54).
38


It would be sufficient for the Commission to decide to take no further action on a complaint lodged by an interested party and then, after that party brought an action, to reopen the preliminary examination stage and repeat those operations as many times as are necessary in order to avoid any judicial review of its actions (see judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 68).
40


It could be different only if the Commission withdrew a decision to take no further action on a complaint in order to remedy illegality affecting that decision, while stating the nature of the illegality vitiating that decision (see, to that effect, judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 70).