Athinaïki Techniki AE v European Commission.
Date: 2010-12-16
59. It should be noted, first, that by arguing in that regard that the withdrawal of the contested act was not effected within a reasonable period, the appellant relies on case-law relating to retroactive withdrawal of an unlawful administrative act creating subjective rights (see Case C-54/77 Herpels v Commission  [1978] ECR 585, paragraph 38, Case C-14/81 Alpha Steel v Commission  [1982] ECR 749, paragraph 10, Case C-15/85 Consorzio Cooperative d’Abruzzo v Commission  [1987] ECR 1005, paragraph 12, and Case C-90/95 de Compte v Parliament  [1997] ECR I-1999, paragraph 35).
63. 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 (see Athinaïki Techniki v Commission , paragraph 40).
64. The Commission is not therefore authorised to persist in its failure to act during the preliminary examination stage. Once that stage in the procedure has been completed, it is bound either to initiate the next stage of the examination procedure, or to adopt a definitive decision to take no further action and, where the Commission takes such a decision on the basis of information supplied by an interested party, it must send that party a copy of that decision (see Athinaïki Techniki v Commission , paragraph 40).
65. In the event, the Court of Justice held that, by the contested act, the Commission had closed the file for the purposes of administrative action. By that act, the Commission decided to bring to an end the preliminary examination procedure initiated by Athinaïki Techniki, stated that the review initiated had not enabled it to establish the existence of State aid within the meaning of Article 87 EC and it implicitly refused to initiate the formal investigation procedure provided for in Article 88(2) EC (see Athinaïki Techniki v Commission , paragraphs 51 and 52).
66. The Court thus considered that the Commission had adopted a definitive position on Athinaïki Techniki’s request for a finding of infringement of Articles 87 EC and 88 EC. Furthermore, as the contested act prevented Athinaïki Techniki from submitting its comments during the formal investigation procedure referred to in Article 88(2) EC, it produced binding legal effects which were capable of affecting Athinaïki Techniki’s interests. The contested act did, therefore, constitute an act open to challenge for the purposes of Article 230 EC (see Athinaïki Techniki v Commission , paragraphs 58, 61 and 62).
67. The appellant, as a party to whom the procedural guarantees under Article 88(2) EC apply, was therefore entitled, in its capacity as a person directly and individually concerned by the act in question for the purposes of the fourth paragraph of Article 230 EC, to challenge the lawfulness of the contested act (see, to that effect, Case C-367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I-1719, paragraphs 41 and 48). More specifically, Athinaïki Techniki was entitled to obtain a review by the Community courts of the Commission’s assessment that, on the evidence available to it on 2 June 2004, it could legitimately decide to take no further action in the case and by implication indicate that there was no need to open a formal examination procedure.
68. If the Commission were entitled to withdraw an act such as the contested act in those circumstances, it could perpetuate a state of inaction during the preliminary examination stage, contrary to its obligations under Articles 13(1) and 20(2) of Regulation No 659/1999 and avoid any judicial review. As the Advocate General stated in point 101 of his Opinion, 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.
70. Having regard to the requirements of good administration and legal certainty and the principle of effective legal protection, it must be considered, on the one hand, that the Commission may only withdraw a decision to take no further action on a complaint regarding alleged unlawful aid in order to remedy illegality affecting that decision, and on the other hand, that the Commission cannot, after such withdrawal, pick up the procedure again at a stage earlier than the exact point at which the illegality found had occurred.