Italian Republic v Commission of the European Communities.
Date: 2005-05-10
22. Article 253 EC provides, in particular, that decisions adopted by the Commission are to state the reasons on which they are based. The obligation to give reasons for a decision adversely affecting the addressee is intended to enable the Court to review the legality of the decision and to give the person concerned details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested (see, in particular, Case 195/80 Michel  v Parliament [1981] ECR 2861, paragraph 22).
24. In this instance, the contested decision does not give effect to any procedural provision concerning the review of State aid that does not derive directly from the Treaty. By that decision, the Commission formally called on the Italian authorities to submit their comments on the measures referred to in it, pursuant to Article 88(2) EC, and, in making that request, provisionally classified that aid as new aid, thereby entailing the suspension thereof to the extent indicated in the same decision (see Case C-312/90 Spain v Commission [1992] ECR I‑4117, paragraph 17, and Case C-47/91 Italy v Commission [1992] ECR I‑4145, paragraph 25, and also the interlocutory judgment, paragraph 56). No procedure or legal effect of that decision is based on any innovative provision of the regulation on procedure in State aid cases.
38. The concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it (see, in particular, Case 817/79 Buyl and Others v Commission  [1982] ECR 245, paragraph 28). A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent facts, to have been taken for purposes other than those stated (see, in particular, Joined Cases 18/65 and 35/65 Guttmann  [1966] ECR 103, at 117).
47. As the Court has consistently held, when the Commission examines aid measures under Article 87 EC to determine whether they are compatible with the common market, it is required to initiate the procedure under Article 88(2) EC where, after the preliminary examination, it has been unable to overcome all the difficulties involved in determining whether those measures are compatible with the common market (Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13). The same principles must naturally apply where the Commission also entertains doubts as to the actual classification as aid, within the meaning of Article 87(1) EC, of the measure examined. The Commission cannot therefore be criticised for initiating the procedure even where, in the decision adopted for that purpose, it expresses doubts as to the status as aid, within the meaning of Article 87(1) EC, of the measures covered by it.
48. However, in view of the legal consequences of initiating the procedure provided for in Article 88(2) EC with regard to measures treated as new aid, where the Member State concerned contends that those measures do not constitute aid within the meaning of Article 87(1) EC, the Commission must undertake a sufficient examination of the question on the basis of the information notified to it at that stage by that Member State, even if the outcome of that examination is not definitive. By virtue of the principle of sincere cooperation between Member States and institutions, as embodied in Article 10 EC, and in order not to delay the procedure, it is the responsibility of a Member State which considers that the measures in question do not constitute aid to provide the Commission, at the earliest moment possible, after the Commission has drawn its attention to those measures, with the information on which its position is based. If that information is such as to remove any doubts as to the absence of any element of aid in the measures examined, the Commission cannot initiate the procedure provided for in Article 88(2) EC. Conversely, if that information is not such as to overturn the doubts as to the existence of elements of aid and if doubts also exist as to the compatibility thereof with the common market, the Commission must then initiate that procedure.