NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v European Commission.
Date: 2010-11-18
41. In that regard, it must be observed that it follows from Article 58 of the Statute of the Court of Justice, in conjunction with Article 113(2) of the Rules of Procedure of the Court of Justice, that, on appeal, an appellant may put forward any relevant argument, provided only that the subject-matter of the proceedings before the General Court is not changed in the appeal (Case C‑229/05 P PKK and KNK  v Council  [2007] ECR I‑439, paragraph 66, and Case C‑8/06 P Herrero Romeu  v Commission  [2007] ECR I‑10333, paragraph 32).
45. In that regard, the Court has repeatedly held that an action for annulment for the purposes of Article 230 EC must be available against all acts 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, Athinaïki Techniki  v Commission , paragraph 29 and case-law cited, and Case C‑362/08 P Internationaler Hilfsfonds  v Commission  [2010] ECR I‑0000, paragraph 51).
46. It follows also from settled case-law concerning the admissibility of actions for annulment that it is necessary to look to the actual substance of the acts challenged in order to classify them (see, in particular, Case 60/81 IBM  v Commission  [1981] ECR 2639, paragraph 9, and Case C‑147/96 Netherlands  v Commission  [2000] ECR I‑4723, paragraph 27).
47. 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. It is therefore, in principle, irrelevant for the classification of the act in question whether or not it satisfies certain formal requirements, namely in particular, that it is duly identified by its author and that it mentions the provisions providing the legal basis for it. 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 the act at issue by the Commission, infringing Article 25 of that regulation, as such an error is not capable of altering the substance of that act (see Athinaïki Techniki  v Commission , paragraphs 43 and 44 and case-law cited).
48. Furthermore, 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, that constitute acts open to challenge for the purposes of Article 230 EC, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (see Athinaïki Techniki  v Commission , paragraph 42 and case-law cited).
49. With regard to the possible definitive and actionable nature of measures taken by the Commission in the procedure for reviewing State aid, it should be noted, first, that the Commission must, under Article 10(1) of Regulation No 659/1999, carry out an examination where it has in its possession information from whatever source regarding allegedly unlawful aid. The examination of a complaint, on the basis of that provision, gives rise to the initiation of the preliminary examination stage under Article 88(3) EC and obliges the Commission to examine, immediately, the possible existence of aid and its compatibility with the common market (see, to that effect, Athinaïki Techniki  v Commission , paragraph 37).
50. Article 13(1) of Regulation No 659/1999, which is applicable in the context of an examination of a complaint alleging unlawful aid, obliges the Commission to close that preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision finding that aid does not exist, raising no objections or initiating the formal investigation procedure, since that institution 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, consequently, either to initiate the next stage of the procedure, provided for by Article 88(2) EC, or to adopt a definitive decision rejecting the complaint (see, to that effect, Athinaïki Techniki  v Commission , paragraph 40 and case-law cited).
51. Where the Commission finds, following examination of a complaint, that the investigation has revealed no grounds for concluding that there is State aid within the meaning of Article 87 EC, it refuses by implication to initiate the procedure provided for by Article 88(2) EC (see, to that effect, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 47).
52. As regards the Commission’s finding that the measures complained of constituted existing aid, it should be noted that existing aid is of course subject to the constant review provided for in Article 88(1) EC and must be regarded as lawful so long as the Commission has not found that it is incompatible with the common market (see Case C‑44/93 Namur-Les assurances du crédit [1994] ECR I‑3829, paragraph 34, and Case C‑400/99 Italy  v Commission  [2001] ECR I‑7303, paragraph 48). However, where it receives a complaint relating to allegedly unlawful aid, the Commission, in classifying the measure as existing aid, subjects it to the procedure provided for by Article 88(1) EC and thus refuses by implication to initiate the procedure provided for by Article 88(2) EC (see, to that effect, CIRFS and Others  v Commission , paragraphs 25 and 26, and Case C‑321/99 P ARAP and Others  v Commission  [2002] ECR I‑4287, paragraph 61).
53. Such a decision refusing to initiate the procedure provided for by Article 88(2) EC is definitive and cannot be characterised as a mere provisional measure ( CIRFS and Others  v Commission , paragraph 26, and, to that effect, Athinaïki Techniki  v Commission , paragraphs 54 and 58).
54. In such a situation, the persons intended to benefit from the procedural guarantees afforded by that provision may secure compliance therewith only if they are able to challenge the decision in question before the European Union judicature under the fourth paragraph of Article 230 EC. That principle applies equally, whether the ground on which the decision is taken is that the Commission regards the aid as compatible with the common market or that, in its view, the very existence of aid must be discounted ( Commission  v Sytraval and Brink’s France , paragraph 47) or where it considers that there is existing aid (see, to that effect, CIRFS and Oth ers v Commission , paragraph 27, and ARAP and Others  v Commission , paragraph 62).
55. That finding is corroborated by Article 20 of Regulation No 659/1999, which governs the rights of interested parties. According to the second and third sentences of Article 20(2) thereof, after obtaining from such an interested party information concerning alleged unlawful aid or alleged misuse of aid, the Commission will either consider that there are insufficient grounds for taking a view on the case and inform the interested party thereof or take a decision on a case concerning the subject-matter of the information supplied. It follows that, where the Commission has examined such information and taken a position on it, it takes a decision.
56. Therefore, an action for annulment of a decision not to initiate the procedure pursuant to Article 88(2) EC brought by a party concerned within the meaning of that article, must be considered to be admissible where that party seeks thereby to safeguard the procedural rights available to him under that latter provision (see Athinaïki Techniki  v Commission , paragraph 36 and case-law cited).
59. The appellant, as an undertaking in competition with the company benefiting from the measures complained of, is without doubt an interested party for the purposes of Article 88(2) EC (see Commission  v Sytraval and Brink’s France , paragraph 41, and Case C‑319/07 P 3F  v Commission  [2009] ECR I‑5963, paragraph 32), having regard to the definition of that term in Article 1(h) of Regulation No 659/1999.