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 is likely to open a formal investigation procedure where, after a preliminary examination, it finds that doubts are raised as to the compatibility with the internal market of a notified measure (Regulation No 2015/1589, Article 4) , where it seeks to revoke a decision based on incorrect information provided (Regulation No 2015/1589, Article 11), in case of misuse of aid (Regulation  …

Course of proceedings

The Commission is likely to open a formal investigation procedure where, after a preliminary examination, it finds that doubts are raised as to the compatibility with the internal market of a notified measure (Regulation No 2015/1589, Article 4) , where it seeks to revoke a decision based on incorrect information provided (Regulation No 2015/1589, Article 11), in case of misuse of aid (Regulation No 2015/1589, Article 21) or annulment of its decision by the EU courts . However, an annulment due to errors of law or manifest errors of assessment does not necessarily imply a reopening of the formal examination procedure . The letter sent by an airline company to the Commission which contains information relative to a State aid requires the Commission to examine that information and to inform the applicant that there are insufficient grounds for taking a view in that case, failing which it has not fulfilled its obligation to adopt a position and is in a situation of having failed to act . The withdrawal of a decision on the grounds that its statement of reasons was inadequate and the adoption of a new decision replacing it do not require the formal investigation procedure to be reopened since the applicants' right to a fair hearing and to be involved in the procedure was observed when the original decision was adopted .

The concept of “serious difficulties” in determining whether an aid is compatible with the internal market has an objective character. Their existence must be sought from the circumstances of the adoption of the State measure  and in its content “comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the common market” . The evidence of the existence of serious difficulties may be established by “reference to a body of consistent evidence” assessed on the basis of elements of fact and of law existing at the time when the measure was adopted . The excessively long duration of the preliminary stage , the absence of precise data on the overcapacity of the sector concerned  or the competitive  situation , the fact that the contemplated measure was preceded by measures classified as unlawful aid , and  the failure to take into account the corporate purpose of a public undertaking , are all indications of serious difficulties. By contrast, this is not the case of previous correspondence between the Commission and the Member State concerned  or the high amount of an aid  or commitments given by a Member State to dispel certain doubts relating to the classification of the aid  or the competitive disadvantage suffered by large undertakings in comparison to SMEs . The Commission can in effect conclude, during the preliminary investigation, that the aid measure conferred an advantage on its beneficiary without being required to initiate the formal investigation procedure provided for in Article 108(2) TFEU, as it remains possible to overcome the difficulties encountered during talks with the notifying State and in particular by means of commitments entered into by that State . Likewise, the existence of serious difficulties as to the compatibility of aid in the form of funding   granted to an undertaking entrusted with a service of general economic interest (SGEI) can be ruled out where the amount of the aid is much lower than the offset costs, where the destination of aid is implied and exclusive and where there is a subsequent control procedure setting aside any risk of cross-subsidy of the recipient's commercial activity .

The Commission is not required to comply with a minimum period during its formal investigation procedure , but should as far as possible endeavor to adopt a decision within a period of 18 months from the opening of the formal investigation procedure (Regulation No 2015/1589, Article 9(6)) . The Commission must take account of the legitimate interests of undertakings in the protection of their business secrets and other confidential information (Article 9(10) of Regulation No 2015/1589) . The decision to initiate the procedure must summarize all relevant issues of fact or law, include a preliminary assessment of the proposed measure and set out the reasons resulting in the Commission having doubts as to the compatibility of the measure with the internal market (Regulation No 2015/1589, Article 6) . Although the Commission is obliged to state its reasons, it is not obliged to clarify any outstanding questions before initiating a formal procedure if the decision to initiate such a procedure contains provisional assessments . While the Commission is required to clearly express its doubts as to the compatibility of the aid when it opens a formal investigation procedure, the applicant of the aid is responsible for dispelling those doubts . The decision to open the formal procedure is published, except for confidential information, within two months from its adoption . The formal investigation procedure may be suspended in exceptional circumstances, in particular if the State formally requests so in order to bring its project in line with State aid rules .

Like during the preliminary examination stage, the Commission may require the immediate suspension of the measure , after giving the Member State concerned the opportunity to submit its comments (Regulation No 2015/1589, Article 13) . Where the Member State fails to comply with the injunction, the EU authority has the possibility to initiate proceedings before the Court of Justice pursuant to Article 107(3) TFEU while pursuing the substantive examination . The injunction to suspend the implementation of an existing measure, classified by the Commission as new aid, may take place at the same time as the decision to open the formal investigation procedure or may be subsequent thereto . The opening of a formal investigation procedure does not automatically result in suspending payment of the State aid where the dispute relates to its nature as new or existing aid . However, the opening of the formal procedure affects the validity of measures giving effect to aid that a subsequent decision of compatibility cannot regularize ex post facto . The Commission may also require the Member State provisionally to recover any payment made in effect of an unlawful aid provided that there are no doubts about the aid being classified as aid, urgency is established, and there is a serious risk of substantial and irreparable damage to a competitor (Regulation No 2015/1589, Article 13).

Case C-57/19 P Commission v Tempus Energy Technology Ltd, Judgment of 2 September 2021, LawLex202100005247JBJ, which stresses that since the Commission is required to assess the compatibility of the measure in question with the internal market, and not to compare it with a different measure envisaged by the Member State concerned, the mere fact that the method of financing the measure in question has been altered in relation to the method initially envisaged cannot in itself be regarded as capable of justifying the existence of doubts as to the compatibility of the aid with the internal market.

Although the procedure is to be resumed at the stage of occurrence of the unlawful act, the Commission is not required to reopen it precisely from the point at which the penalized unlawful act had occurred, Case T-301/01 Alitalia v Commission [2008]ECR II-1753, LawLex200900000260JBJ.

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

Case T-11/95 BP Chemicals v Commission [1996] ECR II-599, LawLex200500005184JBJ.

Case T‑525/20 ITD, Danske Fragtmænd A/S et Jørgen Jensen Distribution A/S, Judgmentof 13 September 2023, .

Case 84/82 Germany v Commission [1984] ECR 1451, LawLex200500005395JBJ; Case C-225/91 Matra v Commission [1991] ECR I-5823, LawLex200500004906JBJ; Case T-46/97 SIC v Commission [2000] ECR II-2125, LawLex200500005207JBJ.

Case C-225/91 Matra v Commission [1991] ECR I-5823, LawLex200500004906JBJ: “the decisive factor is not the amount of the aid so much as its impact on intra-Community trade”.

Case T-325/10 Iliad, Judgment of 16 September 2013, LawLex202000001903JBJ.

Case T-513/21 Bastion Holding BV, Judgment of10 May 2023, LawLex202300006527JBJ: the fact that the applicants, being large undertakings, are at a competitive disadvantage compared with SMEs does not constitute a serious difficulty requiring the Commission to initiate a formal investigation procedure, as those undertakings are not in a comparable legal and factual situation.

Case C-131/15 P Club hotel Loutraki, Judgment of 21 December 2016, LawLex201600002120JBJ.

Case T-568/08 M6 v Commission, Judgment of July 2010, LawLex201200001962JBJ.

Case T-371/94 British Airways and others and British Midland Airways v Commission [1998] ECR II-2405, LawLex200500005198JBJ.

Case T-74/14 France v Commission, Judgment of 5 July 2017, not available in English.

This period is not mandatory but indicative and can be extended: Case C-49/05 P Ferriere Nord v Commission [2008] ECR I-68. The possibility of extending the period is confirmed by the Code of Best Practices, at pt 43.

An undertaking or an association of undertakings providing information pursuant to Article 6a, and which is not a beneficiary of the State aid measure in question may request, on grounds of potential damage, that its identity be withheld from the Member State concerned.

See also Case T-346/99 Diputación Foral de Álava and others v Commission [2002] ECR II-4259, LawLex200500005046JBJ.Case T-648/19 Nike European Operations Netherlands BV, Judgment of 14 July 1999, LawLex202100004618JBJ; Cases C-167/19 P and C-171/19 P Freistaat Bayern and Interessengemeinschaft privater Milchverarbeiter Bayerns and others, Judgment of 10 March 2022, LawLex202200001689JBJ, holding that the method of financing is a relevant issue and must, as such, be identified in the opening decision and that the summary of a relevant issue of fact and law following the preliminary examination, while it may be brief, must be sufficiently explicit in order to disclose in a clear and unequivocal manner the  subject matter of the examination carried out by the Commission and thus  to enable the interested parties to submit their observations in that regard in a useful manner; Case C-693/21 P EDP España SA and Endesa Generación SAU, Judgment of 14 December 2023, , even if the Commission's analysis in the decision to initiate the formal investigation procedure is only provisional in nature, it is required to state clearly and unequivocally the reasons why it considered that the measure in question was likely to constitute State aid, so that the General Court erred in law by declaring the applicants' arguments inoperative on the grounds that they referred to the obligation to state reasons.

Case T-328/18 Naturgy Energy Group (SA), Judgment of 8 September 2021, not available in English:    it is sufficient that the applicant understands why the measure at issue is considered selective by the Commission.

Case C-49/05 P Ferriere Nord v Commission [2008] ECR I-68; Case C-440/22 P Wizz Air Hungary Légiközlekedési Zrt., Judgment of 11 January 2024, , which holds that proof of the existence of doubts as to the compatibility with the internal market of the aid in question, which must be sought both in the circumstances of the adoption of the decision not to raise objections and in its content, must be adduced by the applicant for annulment of this decision on the basis of a body of consistent evidence. See also on the scope of the duty to cooperation of the aid applicant: Case T-25/07 Iride and Iride Energia v Commission [2009] ECR II-245, LawLex200900001311JBJ.

Case C-75/97 Belgium v Commission [1999] ECR I-3671, LawLex200500005080JBJ: the State concerned cannot claim an absence of suspension injunction in order to limit the damage suffered by the recipient undertakings.

Case C-39/94 SFEI and others [1996] ECR I-3547, LawLex200500005133JBJ.

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

Case C-615/11 P Commission v Ryanair Ltd, Air One SpA, Judgment of 16 May 2013, LawLex201300000825JBJ.

Case C-400/99 Italy v Commission [2001] ECR I-7303, LawLex200600000746JBJ.

Case C-312/90 Spain v Commission [1992] ECR I-4117, LawLex200500004810JBJ.

Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and others v France [1991] ECR I-5505, LawLex200500004654JBJ.

Case T-267/08 Région Nord-Pas-de-Calais [2011] ECR p. II-1999, LawLex201400000161JBJ.

Case C-242/15 P Land Hessen v Commission, Judgment of 12 October 2016, not available in English.

Case T-73/98 Prayon-Rupel v Commission [2001] ECR II-867, LawLex200500005178JBJ; Case T-108/16 Naviera Armas SA, Judgment of 15 March 2018, LawLex201900000439JBJ, the Commission's failure to carry out a specific examination of whether the port dues paid by the undertaking by way of consideration for the exclusive use of the port infrastructure at issue for the purposes of commercial transport corresponded to the consideration that a private investor could have obtained for such use under normal market conditions, together with the particularly protracted preliminary investigation procedure, combined with the impediment to implementation of the outcome of the tendering procedure organized  by the DGPC in 2014 due to a suspension order, were indications that the examination of the exclusive use of that port infrastructure in the light of the prohibition laid down in Article 107(1) TFEU gave rise to serious difficulties.

Case 84/82 Germany v Commission [1984] ECR 1451, LawLex200500005395JBJ; Case T-46/97 SIC v Commission [2000] ECR II-2125, LawLex200500005207JBJ: a 33-month period indicates per se the existence of serious difficulties in the Commission's assessment; Case T-73/98 Prayon-Rupel v Commission [2001] ECR II-867, LawLex200500005178JBJ. In this case however, the excessive duration is only an indication that the Commission was confronted with serious difficulties if it is reinforced by other factors: Case C-646/11 P 3F v Commission [2013], LawLex201300000113JBJ; Case T-79/16 Vereniging Gelijkberechtiging Grondbezitters, Judgment of 15 October 2018, not available in English, holding that the duration of the six-year and eight-month preliminary examination procedure significantly exceeds what is normally required by a preliminary examination of an aid scheme, and therefore  must be regarded as a conclusive indication of the existence of serious difficulties; Case T-193/19 Achema, Judgment of  8 September 2021, LawLex202200001002JBJ, for a pre-notification phase that lasted more than two years, far exceeding the indicative deadlines within which this phase must be completed under the 2009 Code of Best Practice: but see Case C-57/19 P Commission v Tempus Energy Technology Ltd, Judgment of 2 September 2021, LawLex202100005247JBJ, finding that the length and circumstances of the pre-notification phase cannot constitute an indication of the existence of serious difficulties insofar as it is possible that, during the pre-notification phase, the  Member State concerned could have benefited from its exchanges with the  Commission in order to amend the planned measure in such a way as to  resolve any problems which that measure may have had, so that that measure, in its final form – which is fixed when it  is notified – no longer causes any difficulty; Case T-680/19 Irish Wind Farmer's Association Clg, Judgment of 7 July 2021, LawLex202100004461JBJ, finding that the evidence relating to the duration of the preliminary examination phase is not sufficient to reveal the existence of serious difficulties.

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

European Competition Law

437. Course of proceedings

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437. Course of proceedings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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