Keywords
Summary

Keywords

1. Applications for interim measures - Conditions governing admissibility - Admissibility of the main application - Application for annulment of a Commission decision to initiate a formal investigation procedure in respect of an aid in the course of implementation - Decision producing legal effects - Main application not prima facie inadmissible

(Arts 88(2) EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(1))

2. State aid - Commission decision to initiate a formal investigation procedure in respect of an aid in the course of implementation - Decision capable of being the subject of an action for annulment and of an application for interim measures - Judicial review - Need to demonstrate a manifest error of assessment

(Art. 88(2) EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

3. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Urgency - Assessment criteria - Decision to adjudicate on the substance of the action under an expedited procedure within the meaning of Article 76a of the Rules of Procedure of the Court of First Instance - Not relevant

(Rules of Procedure of the Court of First Instance, Arts 76a and 104(2))

4. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Serious and irreparable damage - Standard of proof - Harm dependent on the occurrence of future and uncertain events

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

5. Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Balancing of all the interests involved - Commission decision to initiate a formal investigation procedure in respect of an aid - Exceptional circumstances necessary to justify the grant of interim measures

(Arts 88(2) EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 659/1999)

Summary

1. A decision adopted by the Commission to initiate a formal investigation procedure in respect of an aid measure in the course of implementation produces specific legal effects and may, therefore, be challenged immediately before the Community judicature, without having to await the adoption of the final decision concluding that procedure. An interested party who initiates such an action may apply for interim relief.

( see para. 59 )

2. A decision to initiate a formal investigation procedure in respect of a State aid measure which has already been implemented, where a Member State wishes to continue to apply it pending a definitive decision by the Commission, may always be simultaneously challenged before the Community judicature and be the subject of an application for interim relief, despite the absence of any injunction to suspend the measure at issue. However, review by the Community judicature in the context of such an application must be precisely circumscribed in order to ensure that the Commission is not prevented from carrying out the preventive control provided for in the Treaty. Such circumscription would seem even more appropriate since the Commission has no discretion as regards whether to initiate a formal investigation procedure when it encounters serious difficulties in classifying a State measure and determining its compatibility with the common market.

In view of the broad discretion which the Commission must enjoy in so far as concerns the provisional assessment of the facts and elements of relevant national law, the applicant must, prima facie, prove that a manifest error of assessment has occurred in order ultimately to obtain the annulment of a decision finding the existence of serious doubts as to whether a State measure constitutes new, rather than existing, aid.

( see paras 76-77, 79 )

3. The mere fact that the Court of First Instance decided, on application by the Commission, to adjudicate on the substance of the action under an expedited procedure cannot influence either the assessment of urgency or, should it prove necessary, the balancing of the interests concerned by the judge hearing the application for interim measures. The relevant criteria of the existence of a particular urgency, which, under Article 76a(1) of the Rules of Procedure of the Court of First Instance, is to be satisfied if the Court is to adjudicate under an expedited procedure, are only partly the same as those which govern the assessment of the condition of urgency that must be satisfied before the judge hearing an application for interim measures is able to adopt such measures.

( see para. 94 )

4. The urgency of an application for interim measures must be assessed in relation to the necessity for an order granting relief in order to prevent serious and irreparable damage to the party requesting the interim measure.

It is for the party who pleads serious and irreparable damage to prove its existence. It does not have to be established with absolute certainty that the harm is imminent; it is sufficient that the harm in question, particularly where it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability.

Damage which is entirely hypothetical in so far as it is based on the occurrence of future and uncertain events cannot justify granting the interim measures.

( see paras 95-96, 101 )

5. The mere fact that a Commission decision to initiate a formal investigation procedure in respect of aid may give rise to uncertainty as to the legality of implementing a non-notified State measure does not suffice to justify the balance of interests being opposed to such a measure being maintained in force.

The Community interest on behalf of which the Commission exercises its fundamental role, under Article 88 EC, of ensuring that the common market is not distorted by aid that has not been notified and/or that is incompatible with the common market must, except in truly exceptional circumstances, prevail, at the stage of the adoption of a decision to initiate the formal investigation procedure, over the interest which a Member State may have in obtaining an interim decision preventing the Commission from examining, within the framework of Article 88(2) EC and Regulation No 659/1999, whether a specific measure constitutes new aid and, if so, whether it is incompatible with the common market.

It is difficult to envisage the circumstances which, in the absence of a particularly serious prima facie case and manifest urgency, would justify suspension by the judge hearing an application for interim measures of a decision which, in regard to a non-notified State measure that has already been implemented, is limited to initiating a formal investigation procedure.

( see paras 109-110, 115 )