Keywords
Summary

Keywords

1 State aid - Planned aid - Review by the Commission - Preliminary stage and inter partes stage - Compatibility of aid with the common market - Difficulties in assessing compatibility - Commission's obligation to initiate the inter partes procedure

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

2 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Decision of the Commission, addressed to a Member State, finding State aid to be compatible with the common market - Action brought by the parties concerned within the meaning of Article 93(2) of the Treaty - Admissibility

(EC Treaty, Art. 93(2) and (3) and Art. 173, fourth para.)

3 Actions for annulment - Actionable measures - Measure capable of being contested by a complainant objecting to State aid - Letter from the Commission informing the complainant of the Commission's refusal to initiate the procedure provided for in Article 93(2) of the Treaty - Excluded

(EC Treaty, Arts 93(2) and 173)

4 State aid - Consideration of complaints - Commission's obligations - Possible organisation of an exchange of views and arguments with the complainant at the preliminary stage - No obligation - Examination by the Commission of its own motion of matters not expressly raised by the complainant - Assessment

(EC Treaty, Arts 93 and 190)

5 State aid - Consideration of complaints - Commission's obligations - Provision of reasons - Scope

(EC Treaty, Arts 93(2) and 190)

Summary

6 The procedure under Article 93(2) of the Treaty is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. When taking a decision in favour of an aid, the Commission may restrict itself to the preliminary examination under Article 93(3) only if it is able to satisfy itself after an initial examination that the aid is compatible with the Treaty. 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).

7 Where, without initiating the procedure under Article 93(2) of the Treaty, the Commission finds, on the basis of Article 93(3), that State aid is compatible with the common market, the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations, who are intended, as parties concerned, to benefit from procedural guarantees where the procedure under Article 93(2) is implemented, must be permitted to bring proceedings for annulment of the decision in which that finding is made.

8 Decisions adopted by the Commission in the field of State aid are addressed to the Member States concerned. Since neither the Treaty nor Community legislation lays down the procedural system for dealing with complaints objecting to grants of State aid, that is also the position where such decisions concern State measures to which objection is taken in complaints on the ground that they constitute State aid contrary to the Treaty and the Commission refuses to initiate the procedure under Article 93(2) of the Treaty because it considers either that the measures complained of do not constitute State aid within the meaning of Article 92 of the Treaty or that they are compatible with the common market. Where the Commission adopts such a decision and proceeds, in accordance with its duty of sound administration, to inform the complainants of its decision, it is the decision addressed to the Member State which must form the subject-matter of any action for annulment which the complainant may bring, and not the letter to that complainant informing him of the decision.

9 The Commission's obligation to state reasons for a decision rejecting a complaint objecting to State aid is not sufficient to found an obligation requiring it to conduct an exchange of views and arguments with the complainant in the context of the initial review provided for by Article 93(3) of the Treaty. Since the Commission is not obliged to give the complainants an opportunity to state their views at that stage, and since, in the context of an examination under Article 93(2) of the Treaty, it is required merely to give notice to the parties concerned to submit their comments, the imposition on the Commission of an obligation requiring it to conduct such an exchange in the context of the initial review could lead to conflict between the procedural regime established by Article 93(3) and that laid down by Article 93(2).

Nor, moreover, is the Commission under any obligation to examine of its own motion objections which the complainant would certainly have raised had it been given the opportunity of taking cognisance of the information obtained by the Commission in the course of its investigation. That criterion, which requires the Commission to place itself in the complainant's shoes, is not an appropriate criterion for defining the scope of the Commission's obligation of investigation.

However, that finding does not mean that the Commission is not obliged, where necessary, to extend its investigation of a complaint beyond a mere examination of the facts and points of law brought to its notice by the complainant. The Commission is required, in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, to conduct a diligent and impartial examination of the complaint, which may make it necessary for it to examine matters not expressly raised by the complainant.

10 The statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

As regards, more particularly, a Commission decision finding that no State aid as alleged by a complainant exists, the Commission must at least provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid. The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance.