Keywords
Summary

Keywords

1 Actions for annulment - Time-limits - Point from which time starts to run - Date on which the measure came to the applicant's knowledge - Subsidiary criterion - Date of publication (EC Treaty, Arts 93(2) and 173, fifth para.) 2 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Commission decision finding that a form of State aid is compatible with the common market - Rival undertaking which did not participate in the proceeding before the Commission - Right of action (EC Treaty, Arts 93(2) and 173, fourth para.) 3 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Commission decision classifying a State measure as State aid or finding that aid is compatible with the common market - Inter partes procedure not opened - Rival undertaking - Right of action (EC Treaty, Arts 93(2) and (3), and 173, fourth para.) 4 State aid - Commission investigation of a capital injection - Preliminary stage and adversarial stage - Classification of a State measure as State aid - Difficulties in making the assessment - Commission's obligation to open the inter partes procedure (EC Treaty, Art. 93(2) and (3))

Summary

1 It is clear from the wording of the fifth paragraph of Article 173 of the Treaty that the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point of the period prescribed for instituting proceedings, is subsidiary to the criteria of publication or notification of the measure. In cases where the contested decision has been published, time for the purposes of bringing proceedings starts to run from the date of publication. Moreover, since it is consistent practice for Commission decisions closing a State aid investigation procedure under Article 93(2) of the Treaty to be published in the Official Journal of the European Communities, an individual seeking annulment of such a decision, who has learned of that measure before its publication, may reasonably expect it to be published in the Official Journal. 2 A Commission decision stating that national aid is compatible with the common market, albeit addressed to the Member State concerned, is of direct and individual concern, within the meaning of the fourth paragraph of Article 173 of the Treaty, to any undertaking which was at the origin of the complaint which led to the opening of the investigation procedure under Article 93(2) of the Treaty, and whose views were heard during that procedure and largely determined the conduct of that procedure, provided, however, that its position on the market was significantly affected by the aid which is the subject of the decision. On the other hand, where an undertaking has not exercised its right to submit comments in the course of the procedure provided for in Article 93(2) of the Treaty, it must - in the context of an action for annulment of a Commission decision closing that procedure - prove that it is individually concerned, for the purposes of the fourth paragraph of Article 173 of the Treaty, by the contested measure. The mere fact that a measure is capable of influencing competitive relationships within the relevant market does not in itself suffice for any trader in any competitive relationship with the measure's beneficiary to be deemed directly and individually concerned by it. Accordingly, it is for the applicant undertaking to prove that it is in a distinct competitive position which differentiates it, as regards the measure in question, from any other trader. 3 Where, without opening the procedure provided for in Article 93(2) of the Treaty, the Commission arrives at a finding on the basis of Article 93(3) that a form of State aid is compatible with the common market or that even its classification as aid must be discounted, the decision making that finding is of individual concern, within the meaning of the fourth paragraph of Article 173 of the Treaty, to parties concerned, within the meaning of Article 93(2) thereof, who are entitled to procedural guarantees when that procedure is set in motion. 4 The procedure under Article 93(2) is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. When taking a decision in favour of an aid, the Commission may restrict itself to the preliminary examination under Article 93(3) only if it is able to satisfy itself after an initial examination that the aid is compatible with the Treaty. If, on the other hand, the initial review leads the Commission to the opposite conclusion or even if it does not enable the Commission to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Article 93(2). Similarly, the Commission may be required to open the procedure provided for in Article 93(2) if an initial examination does not enable it to overcome all the difficulties raised by the question whether a measure constitutes State aid, unless the Commission is able to satisfy itself that the measure at issue would in any event be compatible with the common market, even if it were aid. The mere fact that a public undertaking has already made capital injections into a subsidiary which are classed as `aid' does not automatically mean that a further capital injection cannot be classed as an investment which satisfies the private market economy investor test. Nevertheless, in a case involving three capital injections made by the same investor over a period of two years, the first two of which brought no return, the Commission must determine whether the third injection could reasonably be severed from the first two and classed, for the purposes of the private investor test, as an independent investment. Among the considerations relevant in making such a determination are the chronology of the capital injections in question, their purpose, and the subsidiary's situation at the time when each decision to make an injection was made. The Commission's production, in the course of the proceedings, of contradictory calculations, and its inability to produce the calculations which it made at the material time in order to make a finding as to the return on the injection at issue shows that, in the case in point, there were serious difficulties in determining whether or not the injection constituted State aid.