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 examines the notification as soon as it is received (Regulation No 2015/1589, Article 4). The Commission has a two-month period from the receipt of a complete notification . There is nothing to prevent the Commission from carrying out a joint assessment of the measures during the preliminary investigation phase where this proves to be appropriate in light of the facts of the case .  …

Investigation procedure

The Commission examines the notification as soon as it is received (Regulation No 2015/1589, Article 4). The Commission has a two-month period from the receipt of a complete notification . There is nothing to prevent the Commission from carrying out a joint assessment of the measures during the preliminary investigation phase where this proves to be appropriate in light of the facts of the case . This time-period is mandatory and is binding on all the parties: the interested Member State should not free itself of it by relying on urgency . Although the Commission is required to act promptly, it may however allow itself a period in which to consider the matter between the receipt of information requested to the Member State and the decision to initiate the formal investigation procedure . However, a period of 28 months is an excessive period where it is not justified by the volume of documents submitted, the steps taken or the complexity of the case . The duration of the preliminary examination may be extended with the consent of both the Commission and the Member State concerned. Shorter time-limits may also be fixed. In the absence of notification of the aid scheme, the reasonable nature of the preliminary examination period is not assessed from receipt of the first complaint by the Commission, where the latter received only progressively, while examining that complaint, the information which has allowed it to initiate the formal proceeding .

The preliminary investigation procedure is closed by means of a decision of the Commission which finds either that the notified measure does not constitute aid or does not raise serious doubts as to its compatibility  or, on the other hand, that is does raise doubts in that regard and that the formal investigation procedure under Article 108 (2) TFEU must be initiated. The decision not to raise objections must specify which exception under the Treaty has been applied. It must not rely upon incomplete data under penalty of nullity . The lawfulness of a decision not to raise objections is assessed in the light of the information available to the Commission when the decision was adopted  and depends on whether the assessment of the information and elements available to the Commission during the preliminary examination should objectively have raised doubts as to the compatibility of the notified measure with the internal market . It cannot be challenged on the ground that there is a parallel procedure based on Articles 101 and 102 TFEU, where the Commission has reviewed the extent to which competition in the internal market might be affected before taking a decision . An applicant seeking the annulment of a Commission decision not to raise objections to a State aid measure may rely on any means capable of demonstrating that the assessment of the information and factors available to the Commission during the preliminary examination phase of the notified measure should have raised doubts as to its compatibility with the internal market, so that the Commission was obliged to initiate the formal investigation procedure referred to in Article 108(2) TFEU . The decision not to raise objections puts an end to the investigation procedure on a proposed aid . Unless revocation, the aid will therefore be considered to be existing. The decision is notified to the Member State concerned (Regulation No 2015/1589, Article 31) and a summary notice published in the Official Journal (Regulation No 2015/1589, Article 31(1)). At its request, any interested party may also obtain a copy of the decision (Regulation No 2015/1589, Article 24(3)).

Where the Commission has not taken a decision within the two-month period, the aid is deemed to have been authorized and the Member State may implement it after giving the Commission prior notice thereof . The absence of decision has the same effect regarding the nature of the aid as the decision not to raise objections: the new aid is classified as existing aid . On the other hand, the Commission's silence does not mean an implicit authorization where the aid has not been notified .

The notification is considered as complete if, within two months from its receipt, or from the receipt of any additional information requested, the Commission does not request any further information. See also Case T-171/02 Regione autonoma della Sardegna v Commission [2005] ECR II-2123, LawLex200600001241JBJ: an incomplete notification does not cause the mandatory two-month period to run; Case T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261, LawLex200700000606JBJ, which recalls the principle according to which a complete notification causes the period of preliminary examination to begin.

Case T-58/13 Club Hotel Loutraki, Judgment of 8 January 2015, LawLex201500000005JBJ, upheld by ECJ in Case C-131/15 P Club Hotel Loutraki, Judgment of 21 December 2016, LawLex201600002120JBJ.

Case C-225/91 Matra v Commission [1991] ECR I-5823, LawLex200500004906JBJ.

Case T-827/22, Judgment of 6 November 2024, LawLex202500000901JBJ.

See Case T-757/18 Koinopraxia Touristiki Loutrakiou AE OTA, Judgment of 19 January 2022, LawLex202200000452JBJ, which states that a decision which constitutes a new decision terminating a formal procedure cannot be considered in part as a decision not to raise objections adopted at the end of the preliminary examination phase.

Case C-398/00 Spain v Commission [2002] ECR I-5643, LawLex200500004855JBJ.

Case 120/73 Lorenz GmbH v Bundesrepublik Deutschland and others [1973] ECR 1471, LawLex200400002768JBJ; Case C-398/00 Spain v Commission [2002] ECR I-5643, LawLex200500004855JBJ.

Case C-465/09 P Diputación Foral de Vizcaya and others v Commission [2011] ECR p. I-83, not available in English.

Case T-239/04 Italy v Commission [2007] ECR II-3265, LawLex200800000052JBJ.

For a three-month period: Case T-55/99 CETM v Commission [2000] ECR II-3207, LawLex200500005208JBJ; For a two-month period, Case T-187/99 Agrana Zucker und Stärke v Commission [2001] ECR II-1587, LawLex200500005167JBJ.

Case T-95/03 Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission [2006] ECR II-4739, LawLex200700000459JBJ.

Case C-471/09 P Diputación Foral de Vizcaya and others v Commission, not available in English.

The Commission cannot take a decision not raising any objection at the end of the preliminary investigation stage where it is not able to satisfy itself that the project is compatible with the Treaty: Case T-158/99 Thermenhotel Stoiser Franz and others v Commission [2004] ECR II-1, LawLex200400003296JBJ.

Case C-198/91 Cook v Commission [1993] ECR I-2487, LawLex200500004909JBJ.

Case C-390/06 Nuova Agricast [2008] ECR I-2577, LawLex200900000055JBJ.

Case T-657/20 Ryanair DAC v. Commission, Judgment of 22 June 2022, LawLex202200004107JBJ; Case T-827/22, Judgment of 6 November 2024, LawLex202500000901JBJ.

European Competition Law

434. Investigation procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

434. Investigation procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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