Kingdom of Spain v Commission of the European Communities.
Date: 1992-06-30
11 In order to rule on the admissibility of the action, it should first be noted that a measure may be contested under Article 173 of the Treaty only if has legal effects (see the judgment in Case 22/70 Commission v Council [1971] ECR 263, the "ERTA case").
12 In this case, it should be pointed out at the outset that the decision adopted on 3 August 1990 to initiate the review procedure provided for in Article 93(2) of the Treaty, which was notified to the Spanish Government, prohibited that Government from paying the proposed aid before that procedure had resulted in a final decision.
13 Notwithstanding the Commission' s argument to the contrary, in the circumstances of this case that prohibition is the result of a deliberate decision by it. That becomes clear if the contested measure is placed in the context of the whole system of supervision of aid established by Article 93.
14 The rules of procedure which the Treaty lays down vary according to whether the aid is already in existence or new. While the former is subject to Article 93(1) and (2), the latter is governed by Article 93(2) and (3).
15 With respect to existing aid, Article 93(1) empowers the Commission to keep it under constant review in cooperation with the Member States. In the context of that review, the Commission is to propose to those States any appropriate measures required by the progressive development or by the functioning of the common market. Article 93(2) then provides that if, after giving notice to the parties concerned to submit their comments, the Commission finds that aid is not compatible with the common market having regard to Article 92, or that such aid is being misused, it is to decide that the State concerned shall abolish or alter such aid within such period as may be determined by the Commission.
16 As for new aid, Article 93(3) provides that the Commission is to be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. The Commission then conducts an initial review of the aid proposed. If at the end of that review it considers a proposal to be incompatible with the common market having regard to Article 92, it must without delay initiate the contentious procedure provided for in Article 93(2). In such a case, the final sentence of Article 93(3) prohibits the Member State concerned from implementing the proposed measures until that procedure has resulted in a final decision. New aid is accordingly subject to the Commission' s preventive control and in principle may not be granted until that institution has declared it to be compatible with the Treaty.
17 It follows from the foregoing that the effects of the decision giving notice to the parties concerned and initiating the procedure under Article 93(2) differ depending on whether the aid in question is new aid or existing aid. In the former case the State is prevented from implementing the aid proposal submitted to the Commission; that prohibition does not apply, however, where the aid is existing aid.
18 According to the judgment in Lorenz, cited above, the effect of Article 93(3) of the Treaty is that, if the Commission, having been informed by a Member State of a plan to grant aid, fails to initiate the contentious procedure, that State may at the expiration of a period of two months grant the proposed aid, provided that it has given prior notice to the Commission, and that aid will then come under the system of existing aid.
19 In this case, it is clear from the facts that the difference between the views of the Spanish Government and the Commission concerns the categorization of the aid at issue. The Commission decided to treat aid as new aid which the Spanish Government regarded as existing aid because it had been granted after the Spanish authorities had notified it to the Commission and given notice to the Commission in accordance with the judgment in Lorenz.
20 In those circumstances, it cannot be considered that in this case suspension of payment of the aid follows automatically from the Treaty. Since it clearly involves a choice of the relevant category of aid and the rules of procedure relating to it, the contested decision to initiate the Article 93(2) procedure has legal effects.
21 Secondly, it must be established that the contested decision is not simply a preparatory step, in which case an action against the decision in which the procedure culminates would ensure sufficient protection against any unlawfulness (see the judgment in Case 53/85 Akzo Chemie v Commission [1986] ECR 1965).
23 In addition, where, as in this case, the measures categorized by the Commission as new aid have been implemented, the legal effects of that categorization are definitive. It is clear from the judgment in Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires v French State [1991] ECR I-5505 that even a final decision by the Commission declaring the aid compatible with the common market could not regularize ex post facto the implementing measures which would have to be deemed to be adopted in breach of the prohibition laid down in the final sentence of Article 93(3).
25 In reply to the Commission' s objection that there is a risk of prejudging arguments on the compatibility of the aid with the Treaty, it must also be stated that in the course of the review of the merits of these proceedings it will be for the Court alone to decide whether aid granted in the circumstances of this case constitutes new aid subject to the prohibition in Article 93(3) of the Treaty.