Commission of the European Communities v Chambre syndicale nationale des entreprises de transport de fonds et valeurs (Sytraval) and Brink's France SARL.
Date: 1998-04-02
35 Article 93 of the Treaty provides for a special procedure by which the Commission is to keep State aid under constant review.  As regards proposed new grants of aid by the Member States, it establishes a procedure which must be followed before any aid can be regarded as lawfully granted.  Under the first sentence of Article 93(3) of the Treaty, as interpreted by the case-law of the Court, the Commission is to be notified of any plans to grant or alter aid before those plans are implemented.
37 It follows from the last sentence of Article 93(3) that throughout the preliminary period the Member State concerned may not put the planned aid into effect.  Where the examination procedure is initiated under Article 93(2), that prohibition continues until the Commission reaches a decision on the compatibility of the planned aid with the common market.  However, if the Commission has not responded within two months of notification, the Member State concerned may implement the plan after informing the Commission (see, in particular, Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 38).
38 In the context of the procedure laid down by Article 93, the preliminary stage of the procedure for reviewing aid under Article 93(3) of the Treaty, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must therefore be distinguished from the examination under Article 93(2), which is designed to enable the Commission to be fully informed of all the facts of the case (Case C-198/91 Cook v Commission [1993] ECR I-2487, paragraph 22, and Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraph 16).
39 The procedure under Article 93(2) is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market.  It follows that the Commission, when taking a decision in favour of an aid, may restrict itself to the preliminary examination under Article 93(3) only if it is able to satisfy itself after an initial examination that the aid is compatible with the Treaty.  If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Article 93(2) (see, in particular, Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13, and the judgments, cited above, in Cook v Commission, paragraph 29, and Matra v Commission, paragraph 33).
40 Where, without initiating the procedure under Article 93(2), the Commission finds, on the basis of Article 93(3), that an aid is compatible with the common market, the persons intended to benefit from the procedural guarantees provided by Article 93(2) may secure compliance therewith only if they are able to challenge that decision by the Commission before the Court (see, in particular, Cook v Commission, paragraph 23, and Matra v Commission, paragraph 17).
41 The parties concerned, within the meaning of Article 93(2) of the Treaty, who, as persons directly and individually concerned, are thus entitled under the fourth paragraph of Article 173 of the Treaty to institute proceedings for annulment are those persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations (see, in particular, Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16).
47 The error of law thus committed by the Court of First Instance does not, however, invalidate its judgment, since, as the Commission has conceded, the decision in question was of direct and individual concern to the complainants. In finding in its decision that the investigation had revealed no grounds for concluding that State aid existed within the meaning of Article 92 of the Treaty, the Commission implicitly refused to initiate the procedure under Article 93(2).  It follows from the judgments of the Court cited in paragraphs 40 and 41 above that, in such a situation, the persons intended to benefit from the procedural guarantees afforded by Article 93(2) may secure compliance therewith only if they are able to challenge the decision in question before the Community judicature under the fourth paragraph of Article 173 of the Treaty.  That principle is of equal application, whether the ground on which the decision is taken is that the Commission regards the aid as compatible with the common market or that, in its view, the very existence of aid must be discounted.
48 Since the complainants undeniably qualify as persons entitled to the benefit of the procedural guarantees in question, they must, as such, be regarded as directly and individually concerned by the contested decision. Consequently, they were entitled to seek its annulment (Cook v Commission, paragraphs 25 and 26).
49 In the light of those considerations, it must be held that, by holding that, in the circumstances of the present case, the contested decision was a decision addressed to the complainants rejecting their application for a declaration by the Commission that Articles 92 and 93 of the Treaty had been infringed, the Court of First Instance did not commit an error in law such as to invalidate its judgment.
The second and third pleas
59 As the Advocate General notes at point 83 of his Opinion, such an obligation cannot be founded solely on Article 190 of the Treaty.  Moreover, as the Commission and the interveners have observed, it follows from the judgments cited in paragraphs 38 and 39 of this judgment that the Commission is not obliged to give the complainants an opportunity to state their views at the stage of the initial review provided for by Article 93(3) of the Treaty. Furthermore, those judgments show that, in the context of an examination under Article 93(2), the Commission is required merely to give notice to the parties concerned to submit their comments.  Consequently, as observed by the interveners and by the Advocate General at point 91 of his Opinion, the imposition on the Commission of an obligation requiring it to conduct an exchange of views and arguments with the complainant in the context of the initial review provided for by Article 93(3) of the Treaty could lead to conflict between the procedural regime established by that provision and that laid down by Article 93(2).
60 Next, as regards the statement that the Commission is obliged to examine certain objections of its own motion, it must be stated, contrary to what was held by the Court of First Instance, that the Commission is under no obligation to examine of its own motion objections which the complainant would certainly have raised had it been given the opportunity of taking cognisance of the information obtained by the Commission in the course of its investigation.
62 However, this finding does not mean that the Commission is not obliged, where necessary, to extend its investigation of a complaint beyond a mere examination of the facts and points of law brought to its notice by the complainant.  The Commission is required, in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, to conduct a diligent and impartial examination of the complaint, which may make it necessary for it to examine matters not expressly raised by the complainant.
63 As regards the Commission's obligation to state reasons, it is settled case-law that the statement of reasons required by Article 190 of the Treaty 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 Community court to exercise its power of review.  The requirements to be satisfied by the statement of reasons depend on 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 190 of the Treaty 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, in particular, Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16, and Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86).
64 As regards, more particularly, a Commission decision finding that no State aid as alleged by a complainant exists, the Commission must at least, contrary to the submission of the German Government, provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid.  The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance.
66 As pointed out in paragraph 19 of this judgment, the Court of First Instance examined the pleas alleging infringement of Article 190 of the Treaty and manifest error of assessment together.
67 It must, however, be remembered that these are distinct pleas, each of which may be raised in proceedings under Article 173 of the Treaty.  The first, alleging absence of reasons or inadequacy of the reasons stated, goes to an issue of infringement of essential procedural requirements within the meaning of that article and, involving a matter of public policy, must be raised by the Community judicature of its own motion (see, in particular, Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 24).  By contrast, the second, which goes to the substantive legality of the contested decision, is concerned with infringement of a rule of law relating to the application of the Treaty within the meaning of Article 173, and can be examined by the Community judicature only if it is raised by the applicant.