1. Actions for annulment - Actionable measures - Measures producing legal effects - Decision of the Commission to initiate a formal investigation into State aid together with provisional classification as new aid - Admissibility
(Art. 88 EC; Council Regulation No 659/1999, Arts 10, 11 and 17 to 19)
2. State aid - Existing and new aid - Measure altering an existing aid scheme - Alteration not affecting the substance of the scheme - Classification of the scheme in its entirety as new aid - Not permissible
(Art. 88 EC; Council Regulation No 659/1999, Art. 1(c))
3. State aid - Existing and new aid - No investigation of new aid for a relatively long period - Transformation into existing aid - Exclusion - Possibility of legitimate expectation on the part of recipients preventing recovery of the aid
(Art. 88 EC; Council Regulation No 659/1999, Art. 15)
4. State aid - Commission decision to initiate a formal investigation procedure in respect of an aid - Obligation to state reasons - Scope
(Arts 88(2) and (3) EC and 253 EC; Council Regulation No 659/1999, Art. 6)
5. State aid - Investigation by the Commission - Obligation to conduct an exchange of views and arguments with the complainant, the parties concerned and the Member States at the preliminary stage - None
(Art. 88(2) and (3) EC; Council Regulation No 659/1999, Arts 2(2), 5(1) and (2) and 10(2))
1. Even though the classification of State aid corresponds to an objective situation which does not depend on the assessment made at the stage of the initiation of the formal investigation procedure and though the mere initiation of that procedure does not have the same immediately binding character as a suspension injunction addressed to the Member Sate concerned, the fact that the Commission chose to initiate a formal investigation procedure and provisionally classified a State measure as new aid, instead of following the procedure in respect of possible existing aid, has legal effects.
First, even a final decision of the Commission declaring the aid compatible with the common market does not have the consequence of regularising ex post facto the measures implementing the unlawful measure. Second, the decision initiating the procedure may be invoked before a national court and thus expose the beneficiaries of the measure and territorial entities to the risk that the national court will order suspension of the measure and/or recovery of the payments made.
It follows that the procedural choice to initiate a formal procedure, together with the provisional classification as new aid, must be amenable to judicial review. The initiation of the formal investigation procedure produces the legal effects described above, while, in the context of the examination of existing aid, the legal situation does not change until such time as the Member State concerned accepts proposals for appropriate measures or the Commission adopts a final decision.
( see paras 82, 84-86 )
2. Under Article 1(c) of the Regulation No 659/1999, alterations to existing aid are to be regarded as new aid. According to that unequivocal provision, it is not altered existing aid that must be regarded as new aid, but only the alteration as such that is liable to be classified as new aid.
It is therefore only where the alteration affects the actual substance of the original scheme that the latter is transformed into a new aid scheme. There can be no question of such a substantive alteration where the new element is clearly severable from the initial scheme.
It follows that in initiating a formal investigation procedure in respect of the whole of a State aid scheme and in provisionally classifying that scheme as new aid in its entirety, when the alterations subsequently made must be regarded as elements severable from the initial scheme, the Commission infringes Article 88 EC and Article 1 of the regulation referred to above.
( see paras 109, 111, 114-115 )
3. The mere fact that for a relatively long period the Commission did not open an investigation into a State measure cannot in itself confer on that measure the objective nature of existing aid, if it does constitute aid. Any uncertainty which may have existed in that regard may at most be regarded as having given rise to a legitimate expectation on the part of the recipients so as to prevent recovery of the aid paid in the past.
The same applies to the limitation period provided for in Article 15 of Regulation No 659/1999, which does not in any way express a general principle whereby new aid is transformed into existing aid but merely precludes recovery of aid established more then 10 years before the Commission first intervened.
( see paras 129-130 )
4. According to Article 6 of Regulation No 659/1999, when the Commission decides to initiate a formal investigation procedure into State aid, its decision may be confined to summarising the relevant issues of fact and law, to including a preliminary assessment as to the character of the State measure in issue as aid and to setting out the doubts as to its compatibility with the common market. Article 6 of that regulation also provides that the decision to initiate the procedure must give the interested parties the opportunity effectively to participate in the formal investigation procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the parties to be aware of the reasoning which led the Commission provisionally to conclude that the measure in issue might constitute new aid incompatible with the common market.
( see paras 137-138 )
5. There exists no basis for the imposition of an obligation on the Commission to conduct an exchange of views and arguments with a complainant during the preliminary stage of an investigation into State aid. That also applies in respect of all the parties concerned and all the Member States, on which the applicable provisions confer no right to be involved in an exchange of views during the preliminary investigation stage preceding the decision to initiate the formal investigation procedure. Only the Commission has the power to order the Member State concerned to provide ... information (Article 2(2), Article 5(1) and (2) and Article 10(2) of Regulation No 659/1999). It follows that the Member States and the parties concerned cannot require that the Commission hear their views so that they can influence the preliminary assessment which leads the Commission to initiate the formal investigation procedure.
( see para. 144 )