Keywords
Summary

Keywords

State aid - Draft aid plans - Examination by the Commission - Preliminary phase and inter partes phase - Purpose of the preliminary phase - Obligation on the Commission to examine all the facts and points of law notified by the Member State concerned and brought to its notice by the interested parties - Obligation, in the event of difficulties in assessing the compatibility of the aid, to initiate the inter partes procedure

(EC Treaty, Art. 93(2) and (3) (now Art. 88(2) and (3) EC))

Summary

$$The procedure under Article 93(2) of the Treaty (now Article 88(2) EC) is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. Therefore, when taking a decision in favour of an aid, the Commission may restrict itself to the preliminary phase provided for under Article 93(3) only if it is able to satisfy itself after an initial examination that the draft aid plan is compatible with the Treaty. In that respect, State aid, certain of the conditions of which contravene other provisions of the Treaty, cannot be declared by the Commission to be compatible with the common market. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to carry out all the requisite consultations and, for that purpose, to initiate the procedure under Article 93(2) of the Treaty.

The preliminary stage provided for in Article 93(3) of the Treaty is intended merely to allow the Commission a sufficient period of time for reflection and investigation so that it can form a prima facie opinion on the draft aid plans notified to it, thus enabling it either to conclude, without the need for detailed examination, that the aid is compatible with the common market or, by contrast, to make a finding that the content of those plans raises doubts as to that compatibility. In that respect, the Commission is required to examine all the facts and points of law brought to its notice by persons, undertakings and associations whose interests may be affected by the granting of the aid. It is therefore in the light of both the information notified by the State concerned and that provided by any complainants that the institution must make its assessment in the context of the preliminary examination provided for in Article 93(3) of the Treaty.

( see paras 33-35 )