Athinaïki Techniki AE v European Commission.

• Jurisdiction: European Union
• Celex Number: 62009CJ0362
• ECLI: ECLI:EU:C:2010:783
• Date: 16 December 2010
• Docket Number: C-362/09
• Court: Court of Justice (European Union)
• Procedure Type: Recurso de casación - fundado

Case C-362/09 P

Athinaïki Techniki AE

v

European Commission

(Appeal – State aid – Complaint – Decision to take no further action on the complaint – Withdrawal of the decision to take no further action – Conditions governing the lawfulness of withdrawal – Regulation (EC) No 659/1999)

Summary of the Judgment

State aid – Examination of complaints – Commission’s obligations – Preliminary examination stage – Obligation to close the preliminary examination stage with a decision – Withdrawal of a decision to take no further action on a complaint regarding alleged unlawful aid – Conditions

(Art. 88 EC; Council Regulation No 659/1999, Arts 4(2), (3) and (4), 13(1), and 20(2))

Article 13(1) of Regulation No 659/1999 on the application of Article 88 EC obliges the Commission, once any additional comments have been lodged by interested parties or the reasonable period has expired, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, raising no objections, or initiating the formal investigation procedure.

If, following a decision to take no further action on a complaint regarding alleged unlawful State aid, the Commission were entitled to withdraw such an act it could perpetuate a state of inaction during the preliminary examination stage, contrary to its obligations under Articles 13(1) and 20(2) of Regulation No 659/1999 and avoid any judicial review. To allow such a possibility would run counter to the legal certainty that Regulation No 659/1999 specifically seeks to enhance, as stated in recitals 3, 7 and 11 in the preamble to that regulation.

Consequently, having regard to the requirements of good administration and legal certainty and to the principle of effective legal protection, it must be considered, on the one hand, that the Commission may withdraw a decision to take no further action on a complaint regarding alleged unlawful aid only in order to remedy illegality affecting that decision, and on the other hand, that the Commission may not, after such withdrawal, take up the procedure again at a stage earlier than the exact point at which the illegality found had occurred.

(see paras 63, 68-70)

JUDGMENT OF THE COURT (Third Chamber)

16 December 2010 (*)

(Appeal – State aid – Complaint – Decision to take no further action on the complaint – Withdrawal of the decision to take no further action – Conditions governing the lawfulness of withdrawal – Regulation (EC) No 659/1999)

In Case C‑362/09 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 7 September 2009,

Athinaïki Techniki AE, established in Athens (Greece), represented by S. Pappas, dikigoros,

appellant,

the other parties to the proceedings being:

Commission of the European Communities, represented by D. Triantafyllou, acting as Agent, with an address for service in Luxembourg,

defendant at first instance,

Athens Resort Casino AE Symmetochon, established in Marrousi (Greece), represented by N. Korogiannakis, dikigoros,

intervener at first instance,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of Chamber, D. Šváby, R. Silva de Lapuerta, G. Arestis and J. Malenovský (Rapporteur), Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

after hearing the Opinion of the Advocate General at the sitting on 2 September 2010,

gives the following

Judgment

1 By its appeal, Athinaïki Techniki AE (‘Athinaïki Techniki’ or ‘the appellant’) seeks to have set aside the order of the Court of First Instance of the European Communities (now ‘the General Court’) of 29 June 2009 in Case T-94/05 Athinaïki Techniki v Commission (‘the order under appeal’), by which it held that there was no longer any need to adjudicate on the action seeking annulment of the Commission’s decision of 2 June 2004 to take no further action on Athinaïki Techniki’s complaint concerning alleged State aid granted by the Hellenic Republic to the Hyatt Regency consortium in connection with the ‘Casino Mont Parnès’ public contract, since that decision had become devoid of purpose (‘the contested act’).

Legal context

2 As is clear from the second recital in the preamble to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), that regulation codifies and reinforces the practice, with regard to examining State aid, established by the Commission of the European Communities in accordance with the case-law of the Court.

3 The third recital in the preamble to Regulation No 659/1999 states:

‘… a procedural regulation on the application of Article [88] of the Treaty will increase transparency and legal certainty’.

4 The seventh recital in the preamble to Regulation No 659/1999 states:

‘… the period within which the Commission is to conclude the preliminary examination of notified aid should be set at two months from the receipt of a complete notification or from the receipt of a duly reasoned statement of the Member State concerned that it considers the notification to be complete because the additional information requested by the Commission is not available or has already been provided; …, for reasons of legal certainty, that examination should be brought to an end by a decision’.

5 The eleventh recital in the preamble to Regulation No 659/1999 states:

‘… in order to ensure compliance with Article [88] of the Treaty, and in particular with the notification obligation and the standstill clause in Article [88](3), the Commission should examine all cases of unlawful aid; … in the interests of transparency and legal certainty, the procedures to be followed in such cases should be laid down; … when a Member State has not respected the notification obligation or the standstill clause, the Commission should not be bound by time limits’.

6 Chapter II of that regulation is headed ‘Procedures regarding notified aid’, and includes Article 4 which provides:

‘1. The Commission shall examine the notification as soon as it is received. Without prejudice to Article 8, the Commission shall take a decision pursuant to paragraphs 2, 3 or 4.

2. Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision.

3. Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the common market of a notified measure, in so far as it falls within the scope of Article [87](1) of the Treaty, it shall decide that the measure is compatible with the common market (hereinafter referred to as a “decision not to raise objections”). The decision shall specify which exception under the Treaty has been applied.

4. Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it shall decide to initiate proceedings pursuant to Article [88](2) of the Treaty (hereinafter referred to as a “decision to initiate the formal investigation procedure”).

…’

7 Article 7 of Regulation No 659/1999 specifies the circumstances in which the Commission is to decide to close the formal investigation procedure provided for in Article 88(2) EC.

8 Chapter III of that Regulation governs the procedure regarding unlawful aid.

9 According to Article 10(1) of that regulation:

‘Where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.’

10 Article 13(1) of that regulation provides:

The examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 7. If a Member State fails to comply with an information injunction, that decision shall be taken on the basis of the information available.’

11 Chapter VI of Regulation No 659/1999 is entitled ‘Interested parties’, and includes Article 20 which provides:

‘1. Any interested party may submit comments pursuant to Article 6 following a Commission decision to initiate the formal investigation procedure. Any interested party which has submitted such comments and any beneficiary of individual aid shall be sent a copy of the decision taken by the Commission pursuant to Article 7.

2. Any interested party may inform the Commission of any alleged unlawful aid and any alleged misuse of aid. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for taking a view on the case, it shall inform the interested party thereof. Where the Commission takes a decision on a case concerning the subject matter of the information supplied, it shall send a copy of that decision to the interested party.

3. At its request, any interested party shall obtain a copy of any decision pursuant to Articles 4 and 7, Article 10(3) and Article 11.’

12 Article 25 of Regulation No 659/1999 states:

‘Decisions taken pursuant to Chapters II, III, IV, V and VII shall be addressed to the Member State concerned. …’

Facts giving rise to the dispute in the main proceedings

13 The facts of the case were set out by the General Court in paragraphs 4 to 6 of the order under appeal:

‘4. On October 2001, the Greek authorities initiated a procedure for the award of a public contract with a view to disposing of 49% of the capital of the Casino Mont Parnès. There were two competing candidates, namely the Casino Attikis consortium and the Hyatt consortium. Following an allegedly invalid procedure, the contract was awarded to the Hyatt consortium.

5 A member of the Casino Attikis consortium, Egnatia SA, which, following a...