Athinaïki Techniki AE v Commission of the European Communities.
Date: 2008-07-17
29. It is clear from settled case-law that an action for annulment for the purposes of Article 230 EC must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, inter alia, Case 60/81 IBM  v Commission  [1981] ECR 2639, paragraph 9; Case C-443/97 Spain v Commission [2000] ECR I-2415, paragraph 27; and Case C-131/03 P Reynolds Tobacco and Others v Commission [2006]  ECR I-7795, paragraph 54).
Preliminary observations on the subject-matter of actions for annulment brought before the Court of First Instance
33. Under the procedure for reviewing State aid, it is necessary to distinguish between the preliminary stage of the procedure for examining aid under Article 88(3) EC, which is governed by Articles 4 and 5 of Regulation No 659/1999 and is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, and the actual investigation stage envisaged by Article 88(2) EC, which is governed by Articles 6 and 7 of that regulation and is designed to enable the Commission to be fully informed of all the facts of the case (see, to that effect, Case C-198/91 Cook  v Commission  [1993] ECR I-2487, paragraph 22; Case C-225/91 Matra  v Commission  [1993] ECR I‑3203, paragraph 16; and Case C‑390/06 Nuova Agricast [2008] ECR I-0000, paragraph 57).
34. The procedure under Article 88(2) EC 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 88(3) EC only if it is able to satisfy itself after an initial examination that the aid is compatible with the common market. 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 88(2) EC (see, inter alia, Cook  v Commission , paragraph 29; Matra  v Commission , paragraph 33; and Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 39).
35. It is only in connection with the latter investigation, which is designed to enable the Commission to be fully informed of all the facts of the case, that the Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments ( Cook  v Commission , paragraph 22; Matra  v Commission , paragraph 16; and Case C-78/03 P Commission  v Aktionsgemeinschaft Recht und Eigentum  [2005] ECR I-10737, paragraph 34).
36. Where, without initiating the formal investigation procedure under Article 88(2) EC, the Commission finds, on the basis of Article 88(3) EC and Article 4 of Regulation No 659/1999, that a State measure does not constitute aid incompatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance therewith only if they are able to challenge that decision before the Community judicature. For those reasons, the Court declares to be admissible an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC where he seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision (see, to that effect, Cook v Commission , paragraphs 23 to 26; Matra  v Commission , paragraphs 17 to 20; Commission v Styral and Brink’s France , paragraph 40; and Commission v Aktionsgemeinschaft Recht und Eigentum , paragraph 35).
37. Furthermore, Article 10(1) and the first sentence of Article 20(2) of Regulation No 659/1999 grant to a person concerned the right to set in motion the preliminary examination stage provided for in Article 88(3) EC, by sending information regarding any allegedly unlawful aid to the Commission, which it is then obliged to examine, without delay, the possible existence of aid and its compatibility with the common market.
38. Although the parties concerned cannot rely on rights of the defence for that procedure, they do, however, have the right to be associated with it in an adequate manner taking into account the circumstances of the case at issue (see, to that effect, Case C-49/05 P Ferriere Nord v Commission [2008], not published in the ECR, paragraph 69).
39. Such an association with that procedure must mean that, where the Commission informs the interested parties, in accordance with Article 20(2) of Regulation No 659/1999, that there are insufficient grounds for taking a view on the case, it is required, as the Advocate General points out at point 101 of his Opinion, to allow the interested parties to submit additional comments within a reasonable period.
40. Once those comments have been lodged, or the reasonable period has expired, Article 13(1) of Regulation No 659/1999 obliges the Commission 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. Thus, the Commission is not authorised to persist in its failure to act during the preliminary examination stage. Once that stage of the procedure has been completed the Commission is bound either to initiate a procedure against the subject of the complaint,  or to adopt a definitive decision rejecting the complaint (see, in the context of the procedure in matters of competition, Case 282/95 P Guérin automobiles v Commission [1997] ECR I-1503, paragraph 36). Under the third sentence of Article 20(2) of Regulation No 659/1999, where the Commission takes such a decision on the basis of information supplied by an interested party, it must send a copy of that decision to the interested party.
42. It is apparent from settled case-law concerning the admissibility of actions for annulment that it is necessary to look to the substance of the contested acts, as well as the intention of those who drafted them, to classify those acts. In that regard, it is in principle those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (see, to that effect, IBM v Commission , paragraphs 9 and 10, and Case C-147/96 Netherlands v Commission [2000] ECR I-4723, paragraphs 26 and 27).
43. By contrast, the form in which an act or decision is adopted is in principle irrelevant to the right to challenge such acts or decisions by way of an action for annulment (see, to that effect, IBM v Commission , paragraph 9, and Case C‑208/03 P Le Pen v Parliament [2005] ECR I‑6051, paragraph 46).
44. It is therefore, in principle, irrelevant for the classification of the act in question whether or not it satisfies certain formal requirements, namely, that it is duly named by its author; that it is sufficiently reasoned, and that it mentions the provisions providing the legal basis for it (see, as regards the requirement of being sufficiently reasoned, Case C-39/93 P SFEI and Others v Commission [1994] ECR I-2681, paragraph 31) .  It is therefore irrelevant that the act may not be described as a ‘decision’ or that it does not refer to Article 4(2), (3) or (4) of Regulation No 659/1999. It is also of no importance that the Member State concerned was not notified of it by the Commission, infringing Article 25 of that regulation, as such an error is not capable of altering the substance of that act (see, in that regard, Case C-57/95 France v Commission [1997] ECR I-1627, paragraph 22).
45. If it were otherwise, the Commission could avoid review by the Community judicature simply by failing to adhere to such formal requirements. It is apparent from the case-law that, as the European Community is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the EC Treaty, the procedural rules governing actions brought before the Community courts must be interpreted in such a way as to ensure, wherever possible, that those rules are implemented in such a way as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law (see, to that effect, Case C-50/00 P Unión de Pequeños Agricultores  v Council [2002] ECR I-6677, paragraph 44; Case C-229/05 P PKK and KNK v Council [2007] ECR I-439, paragraph 109; and Case C-432/05 Unibet [2007] ECR I-2271, paragraphs 37 and 44).
46. It follows that, to determine whether an act in matters of State aid constitutes a decision within the meaning of Article 4 of Regulation No 659/1999, it is necessary to ascertain whether, taking account of the substance of that act and the Commission’s intention, that institution has, at the end of the preliminary examination stage, definitively established its position – by way of the act under consideration – on the measure under review and, therefore, whether it has decided that that measure constituted aid or not, that it had no doubts as regards its compatibility with the common market, or that it did have such doubts.
The contested act
51. Further, the words ‘in the absence of additional information to justify continuing the investigation, the Commission ha[d], for the purposes of administrative action, closed the file on the case on 2 June 2004’ in the letter in dispute indicate that the Commission, on that date, actually closed the file for the purposes of administrative action, that is to say, it adopted the contested act.
52. It is apparent from the substance of that act and from the intention of the Commission that it thus decided to bring to an end the preliminary examination procedure initiated by Athinaïki Techniki. By that act, the Commission 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, to that effect, Commission v Sytraval and Brink’s France , paragraph 47).
54. The contested act cannot be classified as preliminary or preparatory since it cannot be followed, in the context of the administrative procedure which has been initiated, by any other decision amenable to annulment proceedings (see, to that effect, inter alia, SFEI and Others  v Commission , paragraph 28).
56. The la wfulness of a decision taken at the end of the preliminary examination stage is examined only on the basis of the information which the Commission had at its disposal at the time when it made the decision (see Nuova Agricast , paragraphs 54 to 60), that is to say, in the present case, at the time the contested act was adopted.
58. It follows that, contrary to what the Court of First Instance held at paragraph 29 of the order under appeal, the Commission did adopt a definite position on Athinaïki Techniki’s request seeking a finding of infringement of Articles 87 EC and 88 EC.
61. As that act prevented Athinaïki Techniki from submitting its comments, in the context of a formal investigation procedure referred to in Article 88(2) EC, it produced legal effects which were capable of affecting that company’s interests.
62. The contested act does, therefore, constitute an act open to challenge for the purposes of Article 230 EC.
Setting aside of the order under appeal
66. In the current state of the proceedings the Court is not in a position to give judgment on the substance of the application before the Court of First Instance. That aspect of the dispute involves the consideration of questions of fact based on evidence which was not assessed before the Court of First Instance, nor argued before the Court, as a result of which it is apparent that the state of proceedings do not permit judgment to be given. However, the Court does possess all the information necessary for it to give final judgment on the preliminary plea of inadmissibility raised by the Commission in the proceedings at first instance (see Case C-193/01 P Pitsiorlas v Council and ECB [2003] ECR I-4837, paragraph 32).
70. Also, it is apparent from the case-law that it is for the party who is seeking to rely on the lateness of an application to demonstrate from which date the time-limit, for the filing of that application, should run. (see, to that effect, Case 108/79 Belfiore v Commission [1980] ECR 1769, paragraph 7, and Case C-403/05 Parliament v Commission  ECR I-9045, paragraph 35).
77. The Commission has thus provided no proof that Athinaïki Techniki received the letter in dispute on 6 December 2004 at the latest. It merely puts forward arguments which are mere presumptions and which cannot take the place of proof (see Joined Cases 193/87 and 194/87 Maurissen and Union syndicale  v Court of Auditors  [1989] ECR 1045, paragraph 47).