Keywords
Summary

Keywords

1 State aid - Investigation by the Commission - Obligation on the Commission to adopt a decision following a complaint by an individual (EC Treaty, Arts 92 and 93) 2 Actions for failure to act - Natural or legal persons - Actionable omissions - Failure to adopt a decision as to how to respond to a complaint seeking to have State aid declared incompatible with the common market - Measure of direct and individual concern to individuals - Whether admissible (EC Treaty, Art. 93(2), Art. 173, fourth para., and Art. 175, third para.) 3 Actions for failure to act - Commission's obligation to act - `Reasonable' time for the purposes of adopting a decision under Articles 92 and 93 of the Treaty - Definition of position for the purposes of Article 175, second paragraph, of the Treaty (EC Treaty, Arts 92, 93 and 175, second para.) 4 Actions for failure to act - Failure to act - Definition of position for the purposes of Article 175, second paragraph, of the Treaty - Meaning (EC Treaty, Art. 175, second para.)

Summary

1 Where interested third parties for the purposes of Article 93(2) of the Treaty submit complaints to the Commission relating to State measures which have not been notified under Article 93(3), the Commission is bound, in the context of the preliminary stage referred to above, to conduct a diligent and impartial examination of the complaints in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, which may make it necessary for it to examine matters not expressly raised by the complainants. On completion of that examination, the Commission should, in regard to the Member State, adopt a decision declaring that the State measure does not constitute aid within the meaning of Article 92(1) of the Treaty, or that the measure does constitute aid but is compatible with the common market under Article 92(2) or (3), or that the procedure under Article 93(2) should be initiated. It may also adopt a hybrid decision combining, according to the circumstances, one or more of the decisions of principle set out above in respect of different aspects of the State measures in question. 2 In relation to the fourth paragraph of Article 173 of the Treaty, which allows individuals to bring an action for annulment against a measure of an institution not addressed to them provided that the measure is of direct and individual concern to them, the third paragraph of Article 175 must be interpreted as entitling them to bring an action for failure to act against an institution which they claim has failed to adopt a measure which would have concerned them in the same way. Where an undertaking has brought a complaint alleging the existence of State aid incompatible with the common market, it must be considered to be directly affected by the Commission's failure to rule on that complaint where there is no doubt that the national authorities intend to implement their plan to grant aid or where the aid in question has already been granted. Such an undertaking is individually concerned by such a failure within the meaning of the third paragraph of Article 175 where it must be considered to be an interested person for the purposes of Article 93(2), a concept which includes persons, undertakings or associations whose interests might be affected by the grant of aid, particularly competing undertakings and professional organisations. 3 In the context of an action for failure to act, it is appropriate to examine whether, at the time when the Commission was formally called upon to define its position within the meaning of the second paragraph of Article 175 of the Treaty, it was under a duty to act. Since it has exclusive jurisdiction to assess the compatibility of State aid with the common market, the Commission must, in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, conduct a diligent and impartial examination of a complaint alleging aid to be incompatible with the common market. Furthermore, in relation to State aid, it is a general principle of Community law that the Commission must act within a reasonable time in adopting a decision under Articles 92 or 93 of the Treaty. It follows that the Commission cannot prolong indefinitely its preliminary investigation into State measures in relation to which there has been a complaint by an individual, where it has agreed to initiate such an investigation. However, whether or not the duration of an administrative procedure is reasonable must be determined in relation to the particular circumstances of each case and, especially, its context, the various procedural stages, the complexity of the case and its importance for the various parties involved. 4 A letter from an institution called upon to act, which states that the institution concerned wishes to examine the questions raised in the notice, does not amount to the defining of a position for the purposes of the second paragraph of Article 175.