Keywords
Summary

Keywords

1 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Commission decision declaring aid to be compatible with the common market - Complainant undertaking - Right of action - Conditions

(EC Treaty, Arts 93(2) and 173, fourth para.)

2 State aid - Proposed aid - Failure to notify - Implementation before the Commission's final decision - Prohibition - Direct effect - Scope - Commission's power to order suspension

(EC Treaty, Arts 92(1) and (3) and 93(3))

3 State aid - Prohibition - Derogations - Commission's discretion - Possibility of adopting guidelines - Judicial review - Limits

(EC Treaty, Art. 92(3))

Summary

4 The decision whereby the Commission declares aid to be compatible with the common market is of direct and individual concern to the undertakings which instigated the complaint giving rise to the initiation of the procedure for investigating the aid and whose views were heard and which determined the course of that procedure, provided, however, that their market position was significantly affected by the aid measure which the contested decision left intact to produce its effects. That is true particularly of an undertaking which is in competition with the recipient in a sector comprising a restricted number of undertakings in business, and which participated with the latter in one of the tendering procedures characteristic of that sector which, for it, was of considerable importance.

5 The infringement by the Member States of the obligation laid down in Article 93(3) of the Treaty to notify the Commission of proposed aid and not to implement any such aid prior to the Commission's final decision does not have the effect of rendering those measures automatically incompatible with the common market. In fact, the prohibition on the grant of aid, laid down in Article 92(1), is neither absolute nor unconditional, since paragraph 3 of that provision grants the Commission a wide margin of discretion, in derogation from the general prohibition, to declare certain aid compatible with the common market.

The possible incompatibility of aid measures with the common market may be established therefore only after completion of the examination procedure provided for in Article 93 which it is for the Commission to implement, and cannot be an automatic consequence of the omission by the Member States concerned to notify the measure in question.

Furthermore, the infringement of such an obligation is penalized by the direct effect attributed to Article 93(3), which enables the undertaking concerned, if appropriate, to bring proceedings before the national courts. The Commission may, none the less, for its part, direct the Member State responsible to suspend payment of the aid until the procedure has been completed.

6 Article 92(3) of the Treaty confers on the Commission a wide discretion to allow aid by way of derogation from the general prohibition laid down in paragraph (1) of that article, inasmuch as the determination in such cases of whether State aid is compatible with the common market raises problems which make it necessary to examine and appraise complex economic facts and conditions. In the exercise of that discretion the Commission may lay down for itself guidance for the exercise of its discretionary powers by way of documents such as the guidelines in question, provided that they contain directions on the approach to be followed by that institution and do not depart from the Treaty rules. Judicial review must therefore be limited to checking that the rules on procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment and no misuse of powers. It is not for the Court, therefore, to substitute its economic assessment for that of the Commission.