Portuguese Republic v Commission of the European Communities.
Date: 2001-05-03
29 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 (Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 35).
31 The parties concerned within the meaning of Article 93(2) of the Treaty include not only the undertakings benefiting from the aid but also the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations (Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16).
32 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 enable the Commission to form a prima facie opinion on the partial or complete compatibility 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; Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraph 16; Sytraval and Brink's France, paragraph 38).
33 It follows that the procedure under Article 93(2) of the Treaty, which gives other Member States and the parties concerned the assurance that they will be able to make their views known and enables the Commission to be fully informed of all the facts of the case before taking its decision, is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. Therefore, when taking a decision in favour of an aid, the Commission may restrict itself to the preliminary phase provided for 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) of the Treaty (see, in particular, Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13; Cook, paragraph 29; Matra, paragraph 33; Sytraval and Brink's France, paragraph 39).
34 The preliminary stage provided for in Article 93(3) of the Treaty is intended merely to allow the Commission a sufficient period of time for reflection and investigation so that it can form a prima facie opinion on the draft aid plans notified to it, thus enabling it either to conclude, without the need for detailed examination, that the aid is compatible with the common market or, by contrast, to make a finding that the content of those plans raises doubts as to that compatibility (see, to that effect, Case C-99/98 Austria v Commission [2001] ECR I-1101, paragraphs 53 and 54).
41 It follows from the general scheme of the Treaty that the procedure under Article 93 must never produce a result which is contrary to the specific provisions of the Treaty. Accordingly, State aid, certain of whose conditions contravene other provisions of the Treaty, cannot be declared by the Commission to be compatible with the common market (see, in particular, Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 78).