Keywords
Summary

Keywords

1. Actions for annulment - Actionable measures - Decision on State aid adopted after annulment of an initial decision on the ground of failure to initiate the procedure under Article 93(2) of the Treaty (now Article 88(2) EC) - Decision reaching the same conclusions as the annulled decision - Decision not confirmatory in nature

(EC Treaty, Art. 93(2) (now Art. 88(2) EC) and Art. 173 (now, after amendment, Art. 230 EC))

2. State aid - Planned aid - Prohibition on implementation prior to a final decision by the Commission - Scope - Planned aid considered by the Member State to be compatible with the Treaty - Obligation of prior notification and temporary suspension of implementation of the aid

(EC Treaty, Art. 93(3) (now Art. 88(3) EC))

Summary

1. The annulment of a Commission decision on State aid on the ground of a procedural defect, namely the failure to initiate the inter partes procedure provided for by Article 93(2) of the Treaty (now Article 88(2) EC), does not render res judicata the designation by that decision of the measure as State aid, introduced without prior notification and therefore unlawful. The Commission is not bound by the judgment annulling that decision except in so far as it is required to allow interested parties to take part in the detailed examination procedure. For the rest, the Commission retains its discretionary powers of assessment in regard to the substance of the measure in question.

In those circumstances, a subsequent decision adopted, in regard to the same measure, after initiation of the inter partes procedure provided for by Article 93(2) of the Treaty does not confirm a definitive finding contained in an earlier measure, with the result that an action brought against that subsequent decision is admissible.

( see paras 19-21 )

2. The final sentence of Article 93(3) of the Treaty (now Article 88(3) EC) is the means of safeguarding the machinery for review laid down by that article to prevent implementation of aid contrary to the Treaty. For that reason, even if a Member State takes the view that an aid measure is compatible with the common market, that fact cannot entitle it to defy the clear provisions of Article 93 of the Treaty. It follows that the purpose served by the provision introduced by Article 93(3) is not a mere obligation to notify but an obligation of prior notification which, as such, necessarily implies the suspensory effect required by the final sentence of Article 93(3). That provision does not therefore have the effect of disjoining the obligations laid down therein, that is to say, the obligation to notify any new aid and the obligation to suspend temporarily the implementation of that aid.

( see paras 31-32 )