Case T-30/03 RENV

3F

v

European Commission

(State aid – Fiscal aid granted by the Danish authorities – Seafarers employed on board vessels registered in the Danish International Register – Commission decision not to raise objections – Action for annulment – Serious difficulties)

Summary of the Judgment

1.      State aid – Examination by the Commission – Preliminary review and main review – Commission’s duty to initiate the main review procedure in the event of serious difficulties – Meaning of serious difficulties

(Art. 88(2) and (3) EC)

2.      State aid – Examination by the Commission – Aid not notified but having been the subject of complaints by interested third parties – Commission’s obligation to close the preliminary examination stage within a reasonable period of time – Scope

(Art. 88(3) EC)

3.      State aid – Examination by the Commission – Examination of complaints – No obligation on the Commission to conduct an exchange of views and arguments with the complainant at the preliminary review

(Art. 88(3) EC)

1.      The procedure under Article 88(2) EC is essential where the Commission has serious difficulties in determining whether aid is compatible with the common market. The Commission may therefore restrict itself to the preliminary examination under Article 88(3) EC when taking a decision in favour of aid only if it is able to satisfy itself, after an initial investigation, that the aid is 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 obtain all the requisite opinions and to that end to initiate the procedure under Article 88(2) EC.

Although it has no discretion in relation to the decision to initiate the formal investigation procedure where it finds that such difficulties exist, the Commission nevertheless enjoys a certain margin of discretion in identifying and evaluating the circumstances of the case in order to determine whether they present serious difficulties. In accordance with the objective of Article 88(3) EC and its duty of sound administration, the Commission may, amongst other things, engage in a dialogue with the notifying State or third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. That power presupposes that the Commission may bring its position in line with the results of the dialogue it engaged in, without that alignment having to be interpreted, a priori, as establishing the existence of serious difficulties.

The notion of serious difficulties is an objective one. Whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content, in an objective manner, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the common market. It follows that judicial review by the Court of the existence of serious difficulties will, by its nature, go beyond simple consideration of whether or not there has been a manifest error of assessment. The applicant bears the burden of proving the existence of serious difficulties and may discharge that burden of proof by reference to a body of consistent evidence, concerning, first, the circumstances and the length of the preliminary examination procedure and, secondly, the content of the contested decision.

(see paras 53-55, 78)

2.      Where the measures alleged to constitute State aid have not been notified by the Member State concerned, the Commission is not required to carry out an initial investigation of those measures within a specified period. However, where interested third parties submit complaints to the Commission relating to State measures which have not been notified, the Commission is bound, in the context of the preliminary stage laid down in Article 88(3) EC, 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. It follows, in particular, that the Commission cannot prolong indefinitely its preliminary investigation into State measures that have been the subject of a complaint, as the purpose of that examination is simply to allow the Commission to form an initial opinion on the classification of the measures submitted for its assessment and their compatibility with the common market.

Whether or not the duration of the preliminary investigation procedure is reasonable must be determined in relation to the particular circumstances of each case and, especially, its context, the various procedural stages to be followed by the Commission and the complexity of the case.

While the length of the preliminary examination can constitute an indication of the existence of serious difficulties, it does not of itself suffice to show the existence of such difficulties.

In particular, the mere fact that discussions took place between the Commission and the Member State concerned during the preliminary examination stage and that, in that context, the Commission asked for additional information about the measures submitted for its review cannot in itself be regarded as evidence that the Commission was confronted with serious difficulties of assessment.

Moreover, it is only if it is reinforced by other factors that the passage of time, even if that time considerably exceeds the time usually required for a preliminary examination under Article 88(3) EC, may lead to the conclusion that the Commission encountered serious difficulties of assessment necessitating initiation of the procedure under Article 88(2) EC.

(see paras 57-58, 70-72)

3.      The preliminary examination phase under Article 88(3) EC does not require an exchange of views and arguments with a complainant and the Commission is therefore not required to inform a complainant of its position before the adoption of the decision on the compatibility or incompatibility of aid with the common market.

(see para. 84)