Republic of Austria v Commission of the European Communities.
Date: 2001-02-15
32 In the Lorenz case-law, and in later judgments (see, for example Case 84/82 Germany v Commission [1984] ECR 1451, paragraphs 11 and 12), the Court recognised that the preliminary stage of the procedure for reviewing aid under Article 93(3) is intended merely to allow the Commission to form a prima facie opinion of the partial or complete conformity with the Treaty of the aid schemes notified to it. The purpose of that provision, which seeks to prevent the implementation of aid contrary to the Treaty, requires that the prohibition laid down in that respect by the last sentence of Article 93(3) should be effective during the whole of the preliminary stage. That is why, in order to take account of the interest of Member States in being informed of the position quickly in spheres where the necessity to intervene may be of an urgent nature, the Commission must act diligently. If, after being informed by a Member State of a plan to grant aid, the Commission fails to initiate the contentious procedure within a reasonable period of time, the Member State may, after giving prior notice to the Commission, put the aid in question into effect, whereupon it will come under the system for existing aid. Guided by Articles 173 and 175 of the EC Treaty (now Article 232 EC), the Court has held that a reasonable delay should not exceed two months.
53 In this connection, it must be borne in mind that, as is clear from the case-law referred to in paragraph 32 of the present judgment, the preliminary stage of the procedure for reviewing aid under Article 93(3) is intended merely to allow the Commission a sufficient period of time for reflection and investigation so that it can form a prima facie opinion of the partial or complete conformity with the Treaty of the aid plans notified to it.
54 It follows that it is sufficient if the Commission has at its disposal, during that preliminary phase, all such information as will enable it to conclude, without any extensive review being called for, whether a given State measure is compatible with the Treaty or raises doubt as to its compatibility.
68 By the second subsidiary plea put forward in its defence, the Commission argues that, even if the period specified in the Lorenz case-law had already commenced on the date suggested by the Republic of Austria, it is not to be understood as being strictly a two-month period, that length of time being no more than a guideline. The Commission maintains that its duty was thus to act with diligence and within a reasonable period of time. Since that period may vary, it can be shorter or longer than two months, depending on the circumstances and the complexity and difficulty of the case. The Commission contends that, in the present case, having regard to the complexity of the matter and the need for it to be discussed within the college of Commissioners, it did act with diligence and did not prolong its pre-examination of the aid plan beyond what was reasonable. In support of that plea, the Commission puts forward a number of arguments.
69 First of all, the Commission refers to the Lorenz judgment itself, in the operative part of which no particular time-limit is laid down. Paragraph 4 of the grounds of the judgment merely mentions the Commission's obligation to act with proper diligence and to define its attitude within a reasonable period. That same paragraph confirms, according to the Commission, the fact that the period mentioned is merely offered as a guideline, in that it states that [i]t is appropriate in this respect to be guided by Articles 173 and 175 of the Treaty which, in dealing with comparable situations, provide for a period of two months. According to the Commission, it follows that the Court of Justice merely wished to draw guidance from that two-month period, without, therefore, intending to apply it strictly to the pre-examination procedure.
70 Secondly, according to the Commission, to interpret the period mentioned in the Lorenz case-law as constituting a strict deadline, would amount to imposing excessive formality on relations between the institutions and the Member States, whereas it must be possible to shorten the period, as well as extend it, if the complexity of the matter so requires, as it does in the present case, or if the particular circumstances of the case call for a pre-examination of more than two months' duration.
71 Thirdly, the Commission raises one main and one subsidiary argument. By its main argument, it submits that, in any event, at no time during the preliminary review phase of the plan to grant aid did the Republic of Austria intimate that the matter was urgent. According to the Commission, the case cannot have been urgent, because the planned investment was made without the Republic of Austria waiting for a decision from the Commission on the plan to grant aid. The Commission also makes the subsidiary point that the chronology of the events reveals that the Austrian authorities did not always reply promptly to the questions raised by the Commission and that they are not, therefore, entitled to rely on the two-month time-limit, given that they themselves contributed to the delay in completing the pre-examination of the aid.
72 Having regard to those arguments, it should be observed at the outset that, whilst it is true that the operative part of the judgment in Lorenz speaks of a period sufficient to enable the aid to undergo a preliminary examination and paragraph 4 of the grounds of the judgment mentions a reasonable period, the Court nevertheless held in that same paragraph that it was appropriate to assess that period at two months.
73 By drawing guidance from Articles 173 and 175 of the Treaty, and by thus assessing the maximum duration of the period at two months, the Court intended to remove a legal uncertainty manifestly contrary to the objective of the preliminary stage of the procedure for examining State aid under Article 93(3) of the Treaty. That objective, which is to offer Member States the legal certainty they require by informing them quickly as to the compatibility with the Treaty of a particular aid, which may be a matter of urgency, would be jeopardised if the period were to be regarded as merely indicative. Moreover, the legal uncertainty that would result could be aggravated if the preliminary examination phase were artificially prolonged.
74 That is why the more recent case-law of the Court refers to a maximum time-limit of two months (see, for example, Germany v Commission, cited above, paragraph 11, Case C-312/90 Spain v Commission [1992] ECR I-4117, paragraph 18, and Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 38). The Commission's first argument must therefore be rejected.
75 As for the Commission's second argument, based on the possibility of shortening the period in certain cases, suffice it to observe that the fact that the Commission may in some cases voluntarily impose a restriction on its own margin of action, so as to take action within a period of less than two months does not imply that it may, without the consent of the Member State concerned, set a time-limit of more than two months and thus deprive the Member State of the advantages of the time-limits laid down by Community law.
76 As regards the Commission's third main argument alleging a lack of urgency in the present case, it must be pointed out that the time-limit formulated in the Lorenz case-law was set at two months in view of the interest of the Member States in obtaining clarification quickly in spheres where there may be an urgent need to take action (see Germany v Commission, cited above, paragraph 11). Bearing that interest in mind, it follows that the preliminary examination of a planned aid must, in principle, be regarded as an urgent matter, unless the Member State concerned expressly agrees to an extension of the time allowed for that examination. It is clear that no such consent may be inferred from the conduct of the Republic of Austria.
77 As far as concerns the subsidiary argument that the Republic of Austria contributed to the delay in the pre-examination of the aid in question, suffice it to observe that Article 93 of the Treaty does not impose any obligation upon Member States other than to notify the aid plan in good time and to refrain from putting the planned aid into effect until the procedure under Article 93(2) has resulted in a final decision. The Treaty does not also require the Member States to reply swiftly to any requests for further information made by the Commission. It is merely in their interests to reply promptly, without their being required to do so. A Member State is not, therefore, precluded from relying on the Lorenz case-law where it has failed to answer such requests promptly.
78 It follows from the foregoing that the Republic of Austria may avail itself of the two-month time-limit even though it failed to answer the Commission's questions promptly.
The Commission's right of objection