Law
10
Under Article 130 of the Rules of Procedure, if a party applies, by a separate document, to the Court for a decision on inadmissibility or lack of competence, without going to the substance of the case, the Court may give a decision, by reasoned order, without taking further steps in the proceedings.
11
The Court considers in the present case that it has sufficient information from an examination of the documents before it and consequently finds that it is appropriate to rule without taking further steps in the proceedings.
12
First, it should be recalled that, unlike new aid, which is regulated by Article 108(2) and (3) TFEU, Article 108(1) TFEU provides that, in the case of existing aid, the Commission must, in cooperation with Member States, keep under constant review all existing systems of aid in those States and that it must propose to the latter any appropriate measures required by the progressive development of the functioning of the internal market.
13
Regulation No 659/1999 specifies, in its Articles 17 to 19, the procedure applicable to existing aid schemes in the following terms:
‘Article 17
Cooperation pursuant to Article [108](1) [TFEU]
-
The Commission shall obtain from the Member State concerned all necessary information for the review, in cooperation with the Member State, of existing aid schemes pursuant to Article [108](1) [TFEU].
-
Where the Commission considers that an existing aid scheme is not, or is no longer, compatible with the [internal] market, it shall inform the Member State concerned of its preliminary view and give the Member State concerned the opportunity to submit its comments within a period of one month. In duly justified cases, the Commission may extend the prescribed period.
Article 18
Proposal for appropriate measures
Where the Commission, in the light of the information submitted by the Member State pursuant to Article 17, concludes that the existing aid scheme is not, or is no longer, compatible with the [internal] market, it shall issue a recommendation proposing appropriate measures to the Member State concerned. The recommendation may propose, in particular:
-
substantive amendment of the aid scheme, or
-
introduction of procedural requirements, or
-
abolition of the aid scheme.
Article 19
Legal consequences of a proposal for appropriate measures
1.Where the Member State concerned accepts the proposed measures and informs the Commission thereof, the Commission shall record that finding and inform the Member State thereof. The Member State shall be bound by its acceptance to implement the appropriate measures.
2.Where the Member State concerned does not accept the proposed measures and the Commission, having taken into account the arguments of the Member State concerned, still considers that those measures are necessary, it shall initiate proceedings pursuant to Article 4(4). Articles 6, 7 and 9 shall apply mutatis mutandis.’
14
Article 4(4) and Articles 6 and 7 of Regulation No 659/1999 concern the formal investigation procedure provided for in Article 108(2) TFEU, while Article 9 governs the revocation of a decision adopted under that procedure.
15
According to the case-law predating the adoption of Regulation No 659/1999, a significant portion of which was codified in that regulation, whether the Commission does or does not propose appropriate measures is a matter which does not produce any definitive legal effect since, in the absence of acceptance by the Member State of the appropriate measures proposed, that Member State is not obliged to adopt them (judgment of
22 October 1996 in
Salt Union v Commission
, T‑330/94, ECR, EU:T:1996:154, paragraph 35
).
16
It follows from Article 19(1) of Regulation No 659/1999 that, in a situation where the Member State accepts the appropriate measures proposed by the Commission, the Commission must record that finding and inform the Member State that it is bound by its acceptance to implement the appropriate measures. According to the case-law, the Commission’s decision recording the proposals of the Member State and rendering those proposals binding, according to that article, constitutes a challengeable act (judgments of
27 February 2014 in
Stichting Woonpunt and Others v Commission
, C‑132/12 P, ECR, EU:C:2014:100, paragraph 72
, and of
11 March 2009 in
TF1 v Commission
, T‑354/05, ECR, EU:T:2009:66, paragraphs 67 to 70
).
17
In a situation where the Member State rejects the appropriate measures proposed by the Commission, the Commission is required, if it considers that such measures are still necessary for the proper functioning of the internal market, to initiate the procedure provided for in Article 108(2) TFEU. Once that procedure has been concluded, the Commission is required to adopt one of the decisions provided for under Article 7 of Regulation No 659/1999. The decision adopted as a result of that procedure produces binding legal effects which are capable of affecting the interests of the parties concerned and is therefore a challengeable act, since it concludes the procedure in question and decides definitively whether the measure under review is compatible with the rules applicable to State aid (judgments of
27 November 2003 in
Regione Siciliana v Commission
, T‑190/00, ECR, EU:T:2003:316, paragraph 45
, and of 20 September 2011 in
Regione autonoma della Sardegna and Others v Commission
, T‑394/08, T‑408/08, T‑453/08 and T‑454/08, ECR, EU:T:2011:493, paragraph 77
).
18
In the present case, unlike the two situations described above, the contested letter was adopted in the context of the stage of cooperation between the Member State concerned and the Commission, referred to in Article 17(1) of Regulation No 659/1999, which may give rise to a proposal for appropriate measures adopted pursuant to Article 18 of that regulation.
19
As the Commission correctly submits, given that the proposal for appropriate measures is not a challengeable act (paragraph 15 above), preparatory acts occurring prior to that proposal for appropriate measures, such as the contested letter, do not, a fortiori, constitute measures producing binding legal effects (see, to that effect, order of
14 May 2009 in
US Steel Košice v Commission
, T‑22/07, EU:T:2009:158, paragraph 55
).
20
It should be recalled in this regard that, according to settled case-law, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, a measure will be open to review only if it is a measure definitively laying down the position of the institution upon conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (see order of
3 March 2015 in
Gemeente Nijmegen v Commission
, T‑251/13, ECR, EU:T:2015:142, paragraph 28
and the case-law cited).
21
That is manifestly not the position in the present case with regard to the contested letter, given that it is clear from the content of that letter that it concerns a ‘preliminary view’ of the Commission and that the latter may be obliged, as a result of that view, to move to the next stage of the procedure, which involves the submission of formal proposals concerning appropriate measures to be taken by the Kingdom of Belgium.
22
The applicants nevertheless rely on a line of case-law according to which a decision to initiate the formal investigation procedure can constitute a measure open to review under Article 263 TFEU (judgment of
23 October 2002 in
Diputación Foral de Guipúzcoa and Others v Commission
, T‑269/99, T‑271/99 and T‑272/99, ECR, EU:T:2002:258, paragraphs 38 to 40
). They also submit that, according to the case-law, when the Commission adopts a decision confirming its preliminary assessment, that decision, if it is not contested within the period for bringing an action, becomes final (judgment of
10 May 2005 in Italy v Commission
, C‑400/99, ECR, EU:C:2005:275, paragraph 17
).
23
However, the fact remains that, unlike the decisions at issue in the cases relied on by the applicants, in the present case the contested letter constitutes neither a decision to initiate the formal investigation procedure, within the meaning of Article 108(2) TFEU and Article 4(4) of Regulation No 659/1999, nor a decision closing that procedure within the meaning of Article 7 of that regulation.
24
It is true that the case-law has established that, in certain cases, a decision to initiate the formal investigation procedure was liable to entail independent legal effects, in particular where it concerns new aid measures which have not been notified and which are still in the course of implementation (see order in
Gemeente Nijmegen v Commission
, paragraph 20 above, EU:T:2015:142, paragraph 30
and the case-law cited) or where, by that decision, the Commission classifies measures as being new aid but which, according to the Member State concerned, do not constitute aid or constitute existing aid (judgments of
9 October 2001 in
Italy v Commission
, C‑400/99, ECR, EU:C:2001:528, paragraphs 62 and 69
, and of
23 October 2002 in
Diputación Foral de Álava and Others v Commission
, T‑346/99 to T‑348/99, ECR, EU:T:2002:259, paragraph 33
) based on the standstill clause applicable to new aid under Article 108(3) TFEU.
25
However, in the present case, it is sufficient to note that the contested letter does not, even implicitly, constitute such a decision but is rather a letter adopted prior to a potential proposal of appropriate measures by the Commission in the context of the procedure for cooperation between the Member State and the Commission, as provided for by Article 17 of Regulation No 659/1999 in regard to an existing aid scheme.
26
It must be borne in mind that, in the context of such a procedure, the Member State remains free to apply the aid scheme concerned and to grant individual aid under that scheme so long as it does not decide to terminate or modify that scheme following the acceptance of appropriate measures proposed by the Commission (see, to that effect, judgment in
Stichting Woonpunt and Others v Commission
, paragraph 16 above,
EU:C:2014:100, paragraphs 71 to 74
), or so long as the Commission does not adopt a final negative decision under Article 7(5) of Regulation No 659/1999 declaring that aid scheme to be incompatible with the internal market (see judgment in
Italy v Commission
, paragraph 24 above, EU:C:2001:528, paragraph 48
and the case-law cited).
27
In the light of all those considerations, it must be concluded that the contested letter does not constitute an act producing binding legal effects and capable of being the subject of an action for annulment on the basis of Article 263 TFEU.
28
Consequently, it is necessary to uphold the objection of inadmissibility raised by the Commission and to dismiss the action as inadmissible.