Kingdom of Belgium v Deutsche Post AG and DHL International.
Date: 2011-09-22
53. As regards in the first place the plea alleging breach of the conditions laid down in Article 230(4) EC, it should be made clear at the outset that Article 4 of Regulation No 659/1999 provides for a stage at which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether the aid notified is compatible with the common market. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 87(1) EC. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the common market; on the other hand, it is also possible that the measure may raise such doubts (Case C-83/09 P Commission v Kronoply and Kronotex  [2011] ECR I-0000, paragraph 43).
55. By seeking the annulment of a contested decision not to raise objections, an applicant essentially alleges that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby acting in breach of the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may rely on any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, change the subject-matter of the action or the conditions for its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999 (see Commission v Kronoply and Kronotex , paragraph 59).
58. The General Court thus rightly found, in paragraph 54 of the judgment under appeal, that it is not for the European Union judicature to interpret an action brought by an applicant to challenge exclusively the substance of a decision appraising the aid as such as one seeking, in fact, to safeguard the applicant’s procedural rights pursuant to Article 88(2) EC and Article 6(1) of Regulation No 659/1999, if the applicant has not expressly raised a plea to that effect. In such a case, the interpretation of the plea would lead to a reclassification of the subject‑matter of the action (see, to that effect, Case C-176/06 P Stadtwerke Schwäbisch Hall and Others v Commission  [2007] ECR I-170, paragraph 25, and Commission  v Kronoply and Kronotex , paragraph 55).
79. The concept of ‘doubts’ referred to in Article 4(4) of Regulation No 659/1999 is an objective one and their existence must be sought not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied (see, to that effect, Case C-431/07 Bouygues and Bouygues Télécom v Commission [2009] ECR I-2665, paragraph 63).