Case C-521/06 P, Athinaïki

>> Court of First Instance erred in law in holding that decision not to take futher action on complaint concerning alleged State aid had no legal effect and could not therefore be the subject of an action under Art. 230 EC

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 applicants, namely the Casino Attikis consortium and the Hyatt consortium. Following an allegedly invalid procedure, the contract was awarded to the Hyatt consortium.

A member of the Casino Attikis consortium, which, following a merger, was taken over by Athinaïki, lodged complaints, respectively, with the Commission’s DG for the “Internal Market” and DG for “Competition”.

On June 2, 2004, the Commission decided to take no further action on this complaint, of which Athinaïki was made aware by letter of December 2, 2004.

By this appeal, Athinaïki was seeking to have quashed the order of the Court of First Instance in Case T-94/05 Athinaïki Techniki v Commission, by which the Court of First Instance dismissed as inadmissible Athinaïki’s action seeking annulment of this decision.

Athinaïki essentially claimed that the decision taken by the Commission not to take any further action clearly assumed a final character in the light of the file and that it was apparent from the context in which the Commission ruled that it had implicitly taken a reasoned decision on the classification of the State aid.

Therefore, Athinaïki claimed that the CFI had erred in law in finding that the contested letter could not be subject of an action and in dismissing the action as inadmissible.

The Court of Justice reiterated that under the procedure for reviewing State aid, it was necessary to distinguish between the preliminary stage of the procedure for examining aid under Art. 88(3) EC and the actual investigation stage envisaged by Art. 88(2) EC, which was designed to enable the Commission to be fully informed of all the facts of the case. (See: Case C-198/91 Cook v Commission [1993]; Case C-225/91 Matra v Commission [1993]; and Case C‑390/06 Nuova Agricast [2008]).

The Court held that the Commission, when taking a decision in favour of an aid, might restrict itself to the preliminary examination under Art. 88(3) EC only if it was able to satisfy itself after an initial examination that the aid was compatible with the common market.

If, on the other hand, the initial examination led the Commission to the opposite conclusion or if it did not enable it to overcome all the difficulties involved in determining whether the aid was compatible with the common market, the Commission was under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Art. 88(2) EC. (see also Case C-367/95 P Commission v Sytraval and Brink’s France [1998]).

Where, without initiating the formal investigation procedure under Art. 88(2) EC, the Commission found, on the basis of Art. 88(3) EC and Art. 4 of Regulation 659/1999, that a State measure did not constitute aid incompatible with the common market, the persons intended to benefit from those procedural guarantees might secure compliance therewith only if they were able to challenge that decision before the Community judicature. (see also Case C-78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005]).

The Court held that to determine whether an act in matters of State aid constituted a decision within the meaning of Art. 4 of Regulation 659/1999, it was necessary to ascertain whether the Commission had decided that that measure constituted aid or not, that it had no doubts as regards its compatibility with the common market, or that it did have such doubts.

The Court found that it was apparent from the substance of the contested act and from the intention of the Commission that it decided to bring to an end the preliminary examination procedure initiated by A. By that act, the Commission stated that the review initiated had not enabled it to establish the existence of State aid within the meaning of Art. 87 EC and it implicitly refused to initiate the formal investigation procedure provided for in Art. 88(2) EC.

In such a situation, the persons to whom the procedural guarantees under that provision applied might ensure that they were observed only if they were able to challenge that decision before the Community judicature in accordance with Art. 230(4) EC.

That principle applied both when a decision was taken on the ground that the Commission considered that the aid was compatible with the common market, and when it took the view that the existence of aid should be ruled out.

Furthermore, according to the Court, the contested act could not be classified as preliminary or preparatory since it could not be followed, in the context of the administrative procedure which had been initiated, by any other decision amenable to annulment proceedings.

Since the contested act prevented Athinaïki from submitting its comments, in the context of a formal investigation procedure referred to in Art. 88(2) EC, it produced legal effects which were capable of affecting that company’s interests. The contested act did, therefore, constitute an act open to challenge for the purposes of Art. 230 EC.

The Court of Justice therefore found that the Court of First Instance erred in law in holding that Athinaïki had brought an action for annulment against an act which had no legal effect and could not therefore be the subject of an action under Art. 230 EC.

Text of judgment