Keywords
Summary

Keywords

1. Actions for annulment — Purpose — Application for annulment of a decision to open the formal procedure for investigating State aid under Article 88(2) EC intended to challenge the obligation to suspend the measures under examination pending the closure of that procedure — Supervening of the decision closing the procedure and the acquisition by that decision of definitive character — Action not becoming devoid of purpose

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to open the formal investigation procedure under Article 88(2) EC

(Arts 88(2) EC and 253 EC; Council Regulation No 659/1999)

3. State aid — Investigation by the Commission — Decision to open the formal investigation procedure under Article 88(2) EC — Duty first to raise the subject of the aid measure with the Member State concerned and examine the situation in the light of the information provided by that State — Duty of sincere cooperation of that Member State

(Arts 10 EC and 88(2) EC; Council Regulation No 659/1999, Arts 10 and 13)

4. Actions for annulment — Pleas in law — Misuse of powers — Meaning

(Art. 230 EC)

5. State aid — Investigation by the Commission — Difficulties in assessment regarding the compatibility of an aid with the common market or the existence of doubts as to the classification as aid — Duty of the Commission to open the formal investigation procedure under Article 88(2) EC

(Arts 87 EC and 88(2) and (3) EC)

6. State aid — Investigation by the Commission — Procedural framework determined by the prior classification of the measures at issue as existing aid or new aid — No Commission discretion — Duty of sincere cooperation on the part of the Member State claiming classification as existing aid

(Arts 10 EC and 88 EC)

7. State aid — General aid scheme approved by the Commission — Individual aid presented as covered by the approval — Investigation by the Commission — Assessment first in relation to the approval decision and only afterwards in relation to the Treaty

(Arts 87 EC and 88 EC)

8. State aid — Existing aid and new aid — Payments in favour of shipping companies providing regular services to islands under public service contracts — Article 4(3) of Regulation No 3577/92 — Application of the system for new aid only to payments not necessary for maintaining the equilibrium of the contracts

(Art. 88(1) and (3) EC; Council Regulation No 3577/92, Art. 4(3))

Summary

1. An action brought against a Commission decision to open the procedure for investigating State aid under Article 88(2) EC, the essential aim of which is to secure a judgment to the effect that the measures concerned should not be suspended pending the decision closing that procedure, does not become devoid of purpose on the ground that, after it was brought, a decision, which has in the meantime become definitive in character, was made closing that procedure.

(see paras 15-18)

2. The obligation to state reasons for decisions adversely affecting addressees, stipulated in Article 253 EC, is intended to enable the Court to review the legality of the decision and to give the person concerned details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested.

As regards a decision to open the procedure under Article 88(2) CE in respect of presumed State aid, failure in such a decision to mention Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC] or any provisions thereof might constitute a defective statement of reasons only if the Commission had applied provisions of that regulation that did not derive directly from the Treaty.

(see paras 22-23)

3. In view of the legal consequences of a decision to initiate the procedure under Article 88(2) EC, classifying the measures concerned as new aid even though the Member State concerned is unlikely to subscribe to that classification, the Commission must first broach the subject of the measures in question with the Member State concerned so that the latter has an opportunity, if appropriate, to inform the Commission that, in its view, those measures do not constitute aid or else constitute existing aid. Articles 10 and 13 of Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC] are compatible with that requirement and do not therefore release the Commission from the obligation to discuss a measure with the Member State concerned before initiating the procedure under Article 88(2) EC.

Where the nature of the aid is disputed, the Commission must undertake a sufficient examination of the question on the basis of the information notified to it at that stage by that Member State, even if the outcome of that examination is not definitive. By virtue of the principle of sincere cooperation between Member States and institutions, as embodied in Article 10 EC, and in order not to delay the procedure, it is the responsibility of a Member State which considers that the measures in question do not constitute aid to provide the Commission, at the earliest moment possible, after the Commission has drawn its attention to those measures, with the information on which its position is based. If that information is such as to remove any doubts as to the absence of any element of aid in the measures examined, the Commission cannot initiate the procedure under Article 88(2) EC. Conversely, if that information is not such as to overturn the doubts as to the existence of elements of aid and if doubts also exist as to the compatibility thereof with the common market, the Commission must then initiate that procedure.

(see paras 29-30, 48)

4. The concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent facts, to have been taken for such a purpose.

(see para. 38)

5. When the Commission examines aid measures under Article 87 EC to determine whether they are compatible with the common market, it is required to initiate the procedure under Article 88(2) EC where, after the preliminary examination, it has been unable to overcome all the difficulties involved in determining whether those measures are compatible with the common market. The same principles must naturally apply where the Commission also entertains doubts as to the actual classification as aid, within the meaning of Article 87(1) EC, of the measure examined.

(see para. 47)

6. The obligation to initiate, in certain circumstances, the procedure under Article 88(2) EC does not prejudge the procedural framework within which that decision must be placed, that is to say either that of constant review of existing aid schemes, as provided for in the combined provisions of Article 88(1) and (2) EC, or that of examination of new aid, as provided for in the combined provisions of Article 88(3) and (2) EC.

In view of the legal consequences of that choice of procedure when measures already implemented are at issue, the Commission cannot choose, by default, the second procedural framework where the Member State concerned alleges that the first framework should be applied. In such circumstances, the Commission must undertake an adequate examination of the question on the basis of the information already communicated to it by that stage by the Member State, even if the outcome of that examination is a non-definitive classification of the measures examined.

As is the case when the question arises of the very existence of elements of aid, in the context of the principle of sincere cooperation between Member States and the institutions, as provided for in Article 10 EC and in order not to delay the procedure, it is the responsibility of the Member State which considers that the aid in question is existing aid to provide the Commission at the earliest stage possible with the information on which that position is based, as soon as the Commission draws its attention to the measures concerned. If that information enables it, for the purposes of a provisional assessment, to take the view that the measures at issue probably in fact constitute existing aid, the Commission must then deal with them within the procedural framework provided for in Article 88(1) and (2) EC. On the other hand, if the information provided by the Member State is not such as to justify that provisional conclusion or if the Member State provides no information on the matter, the Commission must deal with those measures within the procedural framework provided for in Article 88(3) and (2).

(see paras 53-55)

7. Where the Commission has authorised an aid scheme, it would be contrary to the principles of the protection of legitimate expectations and of legal certainty for it to re-examine, as new aid, measures for the implementation of that scheme. It follows that, where the Member State concerned contends that measures are granted in implementation of a previously authorised scheme, the Commission cannot at the outset initiate the procedure provided for in Article 88(2) EC in relation to those measures on the basis that they constitute new aid, which would entail suspension thereof, but must first determine whether or not those measures are covered by the scheme in question and, if they are, whether they satisfy the conditions laid down in the decision approving that scheme. It is only if a negative conclusion is reached after that examination that the Commission can then initiate the procedure under Article 88(2) EC, on the view that the measures in question constitute new aid. Conversely, if a positive conclusion is reached, the Commission must treat those measures as constituting existing aid in accordance with the procedure under Article 88(1) and (2) EC.

(see para. 57)

8. Since the public service contracts referred to in Article 4 of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) by their nature contain financial provisions needed to cover the public service obligations for which they provide, and the wording of Article 4(3) concerns the continuation of those contracts until their expiry date, without limiting the scope of that provision to certain aspects of those contracts, the financial provisions necessary to cover the public service obligations mentioned therein are covered by the said Article 4(3).

By contrast, any aid in excess of what is necessary to cover the public service obligations provided for in the contracts at issue cannot come within the scope of that latter provision, precisely because it is not necessary for the stability, and therefore the maintenance, of those contracts, and cannot therefore, on the basis of that provision, be regarded as existing aid.

(see paras 64-65)