European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The Commission assesses the aid measure under its review according to the rules applicable at the time of the review. Indeed, an effective application of the EU rules requires the Commission to be able to adapt at any time its assessment according to the requirements of that policy . During the preliminary examination, the powers of the Commission are limited however. It cannot any adopt interim m …

Commission's powers

The Commission assesses the aid measure under its review according to the rules applicable at the time of the review. Indeed, an effective application of the EU rules requires the Commission to be able to adapt at any time its assessment according to the requirements of that policy . During the preliminary examination, the powers of the Commission are limited however. It cannot any adopt interim measure other than directing the Member State to suspend payment of the aid immediately, and to provide it, within a period of time determined by the Commission, with all the documents, information and data necessary for examining whether the aid is compatible with the internal market . It has the power, but not the obligation, to order suspension of an aid granted or altered without notification, and the communication of information necessary in order to examine the compatibility of the aid with the internal market .

Where the Commission considers that information provided by the Member State in the notification is incomplete, it requests all necessary additional information (Regulation No 2015/1589, Articles 5(1) and 5(2) . Where the State does not provide the information within the period prescribed or provides incomplete information, the Commission must send a reminder allowing an appropriate additional period. At the end of that period, the absence of information results in the notification being withdrawn.

As regards technically complex cases subject to substantive assessment, the Commission may, if the information provided by a Member State concerned during the course of the preliminary investigation is not sufficient, request any other Member State, an undertaking or an association of undertakings to provide all market information necessary to enable the Commission to complete its assessment of the measure at stake . 

The Commission may, if deemed necessary and proportionate, impose by decision on undertakings or associations of undertakings fines not exceeding 1% of  their total turnover in the preceding business year where they intentionally or through gross negligence supply incorrect or misleading information in response to a request made pursuant to Article 7(6) or (7). If they supply incorrect, incomplete or misleading information in response to a decision adopted pursuant to Article 7(7), it can also impose a periodic penalty payment not exceeding 5 % of the average daily turnover of the undertaking or association of undertakings concerned in the preceding business year for each working day of delay, calculated from the date established in the decision, until it supplies complete and correct information as requested or required by the Commission . The limitation period is three years for the imposition of fines and periodic penalty payments  and five years for the enforcement of decisions .

Decisions adopted pursuant to Articles 7 and 8 are notified without delay to the undertaking or association of undertakings concerned, which then has the opportunity to indicate to the Commission which information it considers to be covered by the obligation of professional secrecy. 

Any interested party may, under Article 24(2) of Regulation No 2015/1589, inform the Commission of any alleged unlawful aid or any alleged misuse of aid. Prior to the amendment of the procedural regulation, there were no formal requirements for reporting such information to the Commission. Thus a letter sent by an airline containing information relating to a State aid places an obligation on the Commission to examine it and to inform the applicant where there are insufficient grounds for taking a view on the case . Article 24(2) now requires the interested party to duly complete a pre-defined complaint form. Where the Commission considers that the interested party has not complied with the compulsory complaint form or that the facts and points of law put forward do not provide sufficient grounds to show the existence of unlawful aid or misuse of aid, it informs the interested party thereof and calls upon it to submit comments. If the interested party fails to make known its views within the prescribed period, the complaint is deemed to have been withdrawn.

Regulation No 2015/1589 also allows the Commission the possibility of conducting an inquiry into the sector of the economy or the use of the aid instrument concerned in the course of which it may request the Member States and/or the undertakings or associations of undertakings concerned to supply the necessary information for the application of Articles 107 and 108 TFEU “where the information available substantiates a reasonable suspicion that State aid measures in a particular sector or based on a particular aid instrument may materially restrict or distort competition within the internal market in several Member States, or that existing aid measures in a particular sector in several Member States are not, or no longer, compatible with the internal market”. 

Article 29 deals with cooperation between the national courts of the Member States which may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of State aid rules. Where the coherent application of the rules governing State aid so requires, the Commission, acting on its own initiative, may submit written observations to the national courts.

For unlawful aid, the Commission may, having successively made two requests that have remained unanswered, require the Member State to provide the information requested (Regulation No 2015/1589, Article 12(3)). The injunction must specify the nature of the information required and prescribe an appropriate period within which it is to be supplied. Although the Commission may take its final decision on the basis of the only information available in case of non-compliance with the injunction by the Member State, it is not possible for it to adopt a final decision by relying on the fragmentary nature of the information sent to it without first using its power to require provision of all the necessary information . The Commission which initiates a procedure of request for information must carry it on until its end under penalty of not being able to rely on the incomplete nature of its file.

The preliminary investigation may be suspended at the request of a Member State, which intends to amend its project in order to bring it in line with State aid rules, or by mutual agreement. Suspension is granted for a period agreed in advance. The examination is resumed from the point at which it was halted where the submitted project does not comply with the requirements of EU law .

When the Commission considers that a Member State, which has been authorized to implement and aid or an aid scheme, has subsequently failed to meet its obligation to comply with the conditions attached to this authorization, it is not obliged to refer directly to the Court of Justice, but can implement the powers assigned to it by Article 108 TFEU for the purposes of reviewing the compatibility of the new aid with the internal market .

In case of non-compliance with an injunction, the Commission is entitled, while carrying out the examination on the substance of the measure, to refer the matter to the Court of Justice in order for the latter to find an infringement of the obligation (Regulation No 2015/1589, Article 14) .

Lastly, the Commission may order the recovery of an aid, after giving the Member State the opportunity to submit its comments. Three cumulative conditions must be fulfilled: there are no doubts about the aid character of the measure, there is urgency to act and there is a serious risk of substantial and irreparable damage to a competitor (Regulation No 2015/1589, Article 13(2)).

Case C-465/029 P Diputación Foral de Vizcaya and others v Commission, Judgment of 9 June 2011, ECR 2011 p. I-83, Summ.pub. LawLex202500006914JBJ

Case T-107/96 Pantochim v Commission [1996] ECR II-1361, LawLex200500005205JBJ.

Case C-324/90 Germany and Pleuger Worthington v Commission [1994] ECR I-1173, LawLex200500005304JBJ; Case T-274/01 Valmont v Commission [2004] ECR II-3145, LawLex200500004508JBJ.

Case T-527/13 Italy v Commission, Judgment of 24 June 2015, LawLex201700000995JBJ : In the event of non-compliance of a decision having declared aid compatible with the internal market subject to certain conditions, where the Commission chooses to exercise its powers of control, it must in principle limit itself to a review of the new aid, unless it shows that the latter has changed the very substance of the existing aid scheme, and declares exceptionally the whole thus amended to be incompatible with the internal market. 

Case 142/87 Belgium v Commission [1990] ECR I-959, LawLex200500004634JBJ. 

Case T-49/93 SIDE v Commission [1995] ECR II-2501, LawLex200500005111JBJ.

The Code of Best Practices recommends grouping requests for information in one request which should be sent to the Member State within 4-6 weeks after the date of notification; it being specified that the pre-notification phase should reduce the requests for information (at pt 25).

Regulation No 2015/1589, Article 7, the Commission can, either on simple request or by decision, require undertakings or associations of undertakings to provide it with information. When it makes a simple request for information, the Commission states the legal basis and the purpose of the request, specifies what information is required and prescribes a proportionate time limit within which the information is to be provided. It also refers to the fines provided for in Article 8(1) for supplying incorrect or misleading information (Art. 6(6)). Where the Commission, by decision, requires an undertaking or an association of undertakings to provide information. It must also indicate their right to have the decision reviewed by the Court of Justice of the European Union (Art. 6(7)).

Regulation No 2015/1589, Article 8. Decision adopted by virtue of Article 8 are published in the OJEU  (Art. 32(2) of Reg. 2015/1589).

Regulation No 2015/1589, Artiche 18: the period starts on the day on which the infringement is committed except in the case of continuing or repeated infringements, where the period begins on the day on which the infringement ceases.

Regulation No 2015/1589, Article 19: the period starts on the day on which the decision taken pursuant to Article 6b becomes final.

Case C-615/11 P Commission v Ryanair, Judgment of 16 May 2013, LawLex201300000825JBJ

European Competition Law

435. Commission's powers

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

435. Commission's powers

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise