Kremikovtzi AD v Ministar na ikonomikata, energetikata i turizma i zamestnik-ministar na ikonomikata, energetikata i turizma.
Date: 2012-11-29
41. As emphasised by the Commission, unlike the acts of accession relating to certain Member States (see, by way of comparison, Case C‑369/09 P ISD Polska and Others v Commission [2011] ECR I‑2011, paragraph 7), the Act of Accession relating to the Republic of Bulgaria does not contain any specific clauses about aid granted to undertakings in the steel sector before that Member State acceded to the European Union. It is apparent from the documents submitted to the Court that, during the accession negotiations, the Republic of Bulgaria stated that it would no longer grant aid to its steel industry and that it was withdrawing its request for extension of the period during which aid could be granted to the steel sector.
49. In that regard, it must be borne in mind that the EC Treaty provides for different procedures according to whether aid is existing or new (see, to that effect, inter alia, Case C‑47/91 Italy  v Commission  [1992] ECR I‑4145, paragraphs 22 to 24, and Case C‑44/93 Namur-Les assurances du crédit  [1994] ECR I‑3829, paragraphs 10 to 12). Whilst under Article 88(3) EC new aid must be notified to the Commission and may not be implemented until that procedure has led to a final decision, under Article 88(1) EC existing aid may be lawfully implemented so long as the Commission has made no finding of incompatibility (see, to that effect, inter alia, Case C‑387/92 Banco Exterior de España [1994] ECR I‑877, paragraph 20; Case C‑372/97 Italy  v Commission [2004] ECR I‑3679, paragraph 42; Case C‑298/00 P Italy  v Commission  [2004] ECR I‑4087, paragraph 47; and also Case C‑322/09 P NDSHT  v Commission  [2010] ECR I‑11911, paragraph 52 and the case‑law cited).
50. Moreover, it follows from Article 2 of the Act of Accession that Articles 87 EC to 89 EC and Regulation No 659/1999 are applicable in Bulgaria only as from its accession to the European Union on 1 January 2007, under the conditions laid down in the Act of Accession.
51. As regards aid implemented in Bulgaria before it acceded to the European Union, Title 2 of Annex V to the Act of Accession provides for a monitoring mechanism. That mechanism aims inter alia to limit the range of aid measures which could be regarded as ‘existing aid’ at the time of accession for the purposes of Article 88(1) EC.
52. Under that mechanism, measures implemented before accession but which, firstly, are still applicable post-accession and, secondly, satisfy the cumulative requirements of Article 87(1) EC on the date of accession, are subject to the specific rules laid down in Annex V to the Act of Accession, either as existing aid for the purposes of Article 88(1) EC when it comes within one of the three categories referred to in that annex, or as new aid on the date of accession for the purposes of application of Article 88(3) EC where it does not come within one of those three categories.
54. As may be inferred from inter alia Article 1(b)(i) and (c) of Regulation No 659/1999, read in conjunction with Article 2 of the Act of Accession, it is only as from the time of accession that, in Bulgaria, the criteria laid down in Article 87(1) EC may be directly applied as such, and then only in respect of situations that arise on or after that date. Moreover, it follows inter alia from the case‑law referred to in paragraph 49 above, recital 18 in the preamble to Regulation No 659/1999 and Article 19 of that regulation that existing aid can be found to be incompatible by decision with prospective effect only.