Keywords
Summary

Keywords

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1. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Commission decision authorizing the payment of State aid to an undertaking operating in a market characterized by a small number of producers and surplus capacity ° Competitor undertaking ° Right of action

(EC Treaty, Art. 93(2), and Art. 173, fourth para.)

2. Commission ° Principle of collegiality ° Scope

(EC Treaty, Art. 163; Merger Treaty, Art. 17)

3. State aid ° General scheme of aids approved by the Commission ° Individual aid presented as coming under the approval ° Examination by the Commission ° Assessment primarily in the light of the approval decision

(EC Treaty, Arts 92 and 93)

4. State aid ° Commission decision authorizing payment of an individual aid covered by a previously approved general scheme of aids ° Decision requiring the examination of complex problems ° Adoption under the habilitation procedure ° Not permissible

5. State aid ° Commission decision ruling on the permissibility of a State aid ° Adoption by the college of Commissioners required ° Amendment after adoption ° Unlawfulness

(EC Treaty, Art. 93(2); Merger Treaty, Art. 17)

6. Acts of the institutions ° Non-existent act ° Concept ° Commission act within the competence of the college and erroneously adopted under the habilitation procedure ° Not included

Summary

1. Although a Commission decision authorizing a national aid to an undertaking can affect the interests of a competitor only from the moment when the national measures which form the subject-matter of the authorization take effect, such a decision is to be regarded as being of direct concern to a competitor within the meaning of the fourth paragraph of Article 173 of the EC Treaty where there is no doubt as to the will of the national authorities to give effect to their aid proposal.

A decision may also be regarded as being of individual concern to a competitor, within the meaning of that provision, even if he cannot invoke his participation in the procedure preceding the adoption of that decision, where, owing to specific circumstances to do with the limited number of undertakings present in the market concerned and the fact that investments benefiting from the aid will involve a considerable increase in production capacity which is already in surplus, such competitor is, with regard to the decision in question, in a situation peculiar to it in relation to any other economic operator.

2. The Commission' s functioning is governed by the principle of collegiality resulting from Article 17 of the Merger Treaty, now replaced by Article 163 of the EC Treaty. This principle is based on equality as between the members of the Commission in the decision-making process and signifies that decisions must be deliberated on jointly and that all the members of the college bear collective responsibility at political level for all decisions adopted.

Recourse to the habilitation procedure for the adoption of measures of management or administration is compatible with this principle. In fact, limited as it is to specific categories of measures of management or administration, thus excluding by definition decisions of principle, such a system of delegation of authority appears necessary, having regard to the considerable increase in the number of decisions which the Commission is required to adopt, to enable it to perform its duties.

3. When it has before it an individual aid which is alleged to come within a previously authorized general scheme, the Commission must first confine itself, prior to the initiation of any procedure, to an examination of whether the aid is covered by the general scheme and satisfies the conditions laid down in the decision approving that scheme. After initiation of the procedure provided for in Article 93(2) of the Treaty, observance of the principles of the protection of legitimate expectations and of legal certainty could not be ensured if the Commission were able to go back on its decision approving the general scheme. Therefore, if the Member State in question proposes modifications to an aid proposal submitted for the examination provided for under Article 93(2), the Commission must first assess whether those modifications result in the proposal being covered by the decision approving the general scheme. If that is the case, the Commission is not entitled to assess the compatibility of the modified proposal with Article 92 of the Treaty since such assessment was already carried out in the framework of the procedure culminating in the decision approving the general scheme.

4. A decision approving aid under a general scheme of aid already approved by the Commission and which is rightly adopted on the basis of an examination limited to verification of compliance with the conditions laid down in the decision approving the general scheme none the less cannot be classified as a measure of management or administration under the rules governing the functioning of the college of Commissioners since one of the abovementioned conditions necessitates a thorough examination of complex factual and legal questions. It cannot therefore be adopted under the habilitation procedure.

5. Observance of the principle of collegiality and especially the need for decisions to be deliberated on collectively by the members of the Commission is necessarily of interest to persons concerned by the legal effects which they produce in the sense that they must be assured that those decisions were in fact adopted by the college and precisely correspond to the latter' s wishes.

That is so following a procedure initiated under Article 93(2) in the case of decisions which give expression to the Commission' s final assessment of the compatibility of aid with the Treaty or with a previously approved general aid scheme, and affect not only the Member State which is the addressee of the decision but also the recipient of the planned aid and its competitors.

After the adoption by the college of Commissioners of such a decision, only spelling or grammatical changes may be made to it. Even on the assumption that the college is entitled to leave to one Commissioner the task of finalizing the decision, where the decision notified to the recipient includes such amendments in relation to the draft submitted to the college that the college cannot be regarded as having adopted all the factual and legal elements of the contested decision, the intervention by that Commissioner goes beyond finalization and amounts to genuine delegation, which was not permissible in this case.

6. The formal defect vitiating a Commission decision erroneously adopted by the express wish of the college under the habilitation procedure is not of such manifest seriousness that the decision must be regarded as non-existent.