CJEU, 3rd chamber, December 16, 2010, No C-362/09 P

THE COURT (Third Chamber),

1 By its appeal, Athinaïki Techniki AE ('Athinaïki Techniki' or 'the appellant') seeks to have set aside the order of the Court of First Instance of the European Communities (now 'the General Court') of 29 June 2009 in Case T-94-05 Athinaïki Techniki v Commission ('the order under appeal'), by which it held that there was no longer any need to adjudicate on the action seeking annulment of the Commission's decision of 2 June 2004 to take no further action on Athinaïki Techniki's complaint concerning alleged State aid granted by the Hellenic Republic to the Hyatt Regency consortium in connection with the 'Casino Mont Parnès' public contract, since that decision had become devoid of purpose ('the contested act').

Legal context

2 As is clear from the second recital in the preamble to Council Regulation (EC) No 659-1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), that regulation codifies and reinforces the practice, with regard to examining State aid, established by the Commission of the European Communities in accordance with the case-law of the Court.

3 The third recital in the preamble to Regulation No 659-1999 states:

'... a procedural regulation on the application of Article [88] of the Treaty will increase transparency and legal certainty'.

4 The seventh recital in the preamble to Regulation No 659-1999 states:

'... the period within which the Commission is to conclude the preliminary examination of notified aid should be set at two months from the receipt of a complete notification or from the receipt of a duly reasoned statement of the Member State concerned that it considers the notification to be complete because the additional information requested by the Commission is not available or has already been provided; ..., for reasons of legal certainty, that examination should be brought to an end by a decision'.

5 The eleventh recital in the preamble to Regulation No 659-1999 states:

'... in order to ensure compliance with Article [88] of the Treaty, and in particular with the notification obligation and the standstill clause in Article [88](3), the Commission should examine all cases of unlawful aid; ..., in the interests of transparency and legal certainty, the procedures to be followed in such cases should be laid down; ... when a Member State has not respected the notification obligation or the standstill clause, the Commission should not be bound by time limits'.

6 Chapter II of that regulation is headed 'Procedures regarding notified aid', and includes Article 4 which provides:

'1. The Commission shall examine the notification as soon as it is received. Without prejudice to Article 8, the Commission shall take a decision pursuant to paragraphs 2, 3 or 4.

2. Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision.

3. Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the common market of a notified measure, in so far as it falls within the scope of Article [87](1) of the Treaty, it shall decide that the measure is compatible with the common market (hereinafter referred to as a 'decision not to raise objections'). The decision shall specify which exception under the Treaty has been applied.

4. Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it shall decide to initiate proceedings pursuant to Article [88](2) of the Treaty (hereinafter referred to as a 'decision to initiate the formal investigation procedure').

...'

7 Article 7 of Regulation No 659-1999 specifies the circumstances in which the Commission is to decide to close the formal investigation procedure provided for in Article 88(2) EC.

8 Chapter III of that Regulation governs the procedure regarding unlawful aid.

9 According to Article 10(1) of that regulation:

'Where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.'

10 Article 13(1) of that regulation provides:

The examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 7. If a Member State fails to comply with an information injunction, that decision shall be taken on the basis of the information available.'

11 Chapter VI of Regulation No 659-1999 is entitled 'Interested parties', and includes Article 20 which provides:

'1. Any interested party may submit comments pursuant to Article 6 following a Commission decision to initiate the formal investigation procedure. Any interested party which has submitted such comments and any beneficiary of individual aid shall be sent a copy of the decision taken by the Commission pursuant to Article 7.

2. Any interested party may inform the Commission of any alleged unlawful aid and any alleged misuse of aid. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for taking a view on the case, it shall inform the interested party thereof. Where the Commission takes a decision on a case concerning the subject matter of the information supplied, it shall send a copy of that decision to the interested party.

3. At its request, any interested party shall obtain a copy of any decision pursuant to Articles 4 and 7, Article 10(3) and Article 11.'

12 Article 25 of Regulation No 659-1999 states:

'Decisions taken pursuant to Chapters II, III, IV, V and VII shall be addressed to the Member State concerned. ...'

Facts giving rise to the dispute in the main proceedings

13 The facts of the case were set out by the General Court in paragraphs 4 to 6 of the order under appeal:

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

5 A member of the Casino Attikis consortium, Egnatia SA, which, following a merger, was taken over by the applicant, Athinaïki Techniki ..., lodged a complaint with the Commission ... concerning State aid which was alleged to have been granted to the Hyatt consortium in connection with a procedure for the award of a public contract. After the complaint was lodged, correspondence ensued between the Commission and Athinaïki Techniki and the Commission made requests for additional information.

6 On 2 December 2004, the Commission sent Athinaïki Techniki a letter ('the letter in dispute') worded as follows:

"I refer to your telephone inquiry seeking to confirm whether the Commission is pursuing its investigation in the abovementioned case or whether there has been a decision to take no further action.

By letter of 16 September 2003, the Commission informed you that, on the basis of the information in its possession, there are insufficient grounds for continuing to examine that case (in accordance with [Article 20] of [Regulation No 659-1999]).

In the absence of additional information to justify continuing the investigation, the Commission has, for administrative purposes, closed the file on the case on 2 June 2004."'

The first set of proceedings before the General Court

14 By application lodged at the Registry of the General Court on 18 February 2005, Athinaïki Techniki brought an action seeking annulment of the decision of which it had been informed by the letter in dispute.

15 By separate document lodged at the Registry of the General Court on 21 April 2005, the Commission raised a plea of inadmissibility, pursuant to Article 114(1) of the Rules of Procedure of the General Court.

16 By order of 26 September 2006 in Case T-94-05 Athinaïki Techniki v Commission, the General Court held that the action was inadmissible. The General Court considered, in essence, that in deciding not to take any further action, the Commission had not adopted a definitive position on the classification and the compatibility with the common market of the measure which was the subject of Athinaïki Techniki's complaint, so that the letter in dispute did not constitute a decision open to challenge under Article 230 EC.

17 On 18 December 2006, Athinaïki Techniki brought an appeal against that order pursuant to Article 56 of the Statute of the Court of Justice.

18 The Court of Justice gave judgment on that appeal in Case C-521-06 P Athinaïki Techniki v Commission [2008] ECR I-5829.

The Athinaïki Techniki v Commission judgment

19 By that judgment, the Court of Justice set aside the order in Athinaïki Techniki v Commission order, dismissed the Commission's plea of inadmissibility and referred the case back to the General Court, reserving the costs.

20 First, the Court specified the nature of acts adopted at the end of the preliminary stage of the procedure for examining State aid.

21 The Court began by pointing out that under the procedure for reviewing State aid, the preliminary stage of the procedure for examining aid, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the actual investigation stage, which is designed to enable the Commission to be fully informed of all the facts of the case. That second stage is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market (paragraphs 33 and 34).

22 The Court stated that it is only in connection with the latter stage that the EC Treaty imposes an obligation on the Commission to give interested parties notice to submit their comments, so that where, on completion of the first stage, the Commission adopts a decision other than to initiate a formal investigation procedure, the parties may challenge the decision in order to secure compliance with those procedural guarantees (paragraphs 35 and 36).

23 The Court added that Regulation No 659-1999 grants interested parties the right to set in motion the preliminary examination stage by sending information regarding any allegedly unlawful aid to the Commission, which is then obliged to examine, without delay, the possible existence of aid and its compatibility with the common market. Interested parties, who cannot rely on rights of the defence for that procedure, do, however, have the right to be associated with it in an adequate manner taking into account the circumstances of the case at issue. This means that, where the Commission informs them, in accordance with the second sentence of Article 20(2) of Regulation No 659-1999, that there are insufficient grounds for taking a view on the case, it is also required to allow them to submit additional comments within a reasonable period (paragraphs 37 to 39).

24 The Court continued its reasoning, at paragraphs 40 to 41 of that judgment, as follows:

'40 Once those comments have been lodged, or the reasonable period has expired, Article 13(1) of Regulation No 659-1999 obliges the Commission to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, raising no objections, or initiating the formal investigation procedure. Thus, the Commission is not authorised to persist in its failure to act during the preliminary examination stage. Once that stage of the procedure has been completed the Commission is bound either to initiate a procedure against the subject of the complaint, or to adopt a definitive decision [to take no further action on] the complaint (see, in the context of the procedure in matters of competition, Case C-282-95 P Guérin automobiles v Commission [1997] ECR I-1503, paragraph 36). Under the third sentence of Article 20(2) of Regulation No 659-1999, where the Commission takes such a decision on the basis of information supplied by an interested party, it must send a copy of that decision to the interested party.

41 In that context, it should be noted that the Commission can take one of the aforementioned decisions provided for in Article 4 of Regulation No 659-1999 without, however, describing it as a decision pursuant to that provision.'

25 The Court recalled its settled case-law concerning the admissibility of actions for annulment, according to which it is necessary to look to the substance of the contested acts, as well as the intention of those who drafted them, to classify those acts. The Court stated that, in principle, acts which are open to challenge are those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, irrespective of the form of those acts and whether or not formal requirements such as their title, statement of reasons, or reference to the provisions providing their legal basis, have been complied with (paragraphs 42 to 44).

26 The Court concluded that it was therefore irrelevant that the contested act might not be described as a 'decision' or did not refer to Article 4(2), (3) or (4) of Regulation No 659-1999, or even that the Member State concerned was not notified of it by the Commission, infringing Article 25 of that regulation.

27 The Court went on to examine whether the General Court was entitled to conclude that the decision to take no further action was not an act open to challenge. It held the following, in paragraphs 52 to 62 of that judgment:

'52 It is [further] apparent from the substance of [the contested act] and from the intention of the Commission that it thus decided to bring to an end the preliminary examination procedure initiated by Athinaïki Techniki. 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 Article 87 EC and it implicitly refused to initiate the formal investigation procedure provided for in Article 88(2) EC (see, to that effect, Case C-367-95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 47).

53 It is [further] apparent from the case-law referred to in paragraph 36 of this judgment that, in such a situation, the persons to whom the procedural guarantees under that provision apply may ensure that they are observed only if they are able to challenge that decision before the Community judicature in accordance with the fourth paragraph of Article 230 EC. That principle applies both when a decision is taken on the ground that the Commission considers that the aid is compatible with the common market, and when it takes the view that the existence of aid should be ruled out.

54 The contested act cannot be classified as preliminary or preparatory since it cannot be followed, in the context of the administrative procedure which has been initiated, by any other decision amenable to annulment proceedings (see, to that effect, inter alia, Case C-39-93 P SFEI and Others v Commission [1994] ECR I-2681, paragraph 28).

55 Contrary to what the [General Court] held, it is not relevant, in that regard, that the interested party may still provide the Commission with additional information which might oblige the Commission to review its position on the State measure at issue.

...

57 If an interested party provides additional information after the closing of the file, the Commission can be obliged to open, if appropriate, a new administrative procedure. By contrast, that information has no effect on the fact that the first preliminary examination procedure is already closed.

58 ... contrary to what the [General Court] held at paragraph 29 of the order under appeal, the Commission did adopt a definite position on Athinaïki Techniki's request seeking a finding of infringement of Articles 87 EC and 88 EC.

...

60 ... The contested act must therefore be classified as a decision within the meaning of Article 4(2) of Regulation No 659-1999, read in conjunction with Articles 13(1) and the third sentence of Article 20(2) of that regulation.

61 As that act prevented Athinaïki Techniki from submitting its comments, in the context of a formal investigation procedure referred to in Article 88(2) EC, it produced legal effects which were capable of affecting that company's interests.

62 The contested act does, therefore, constitute an act open to challenge for the purposes of Article 230 EC.'

28 On the basis of that reasoning, the Court held that the General Court had erred in law in holding that Athinaïki Techniki had brought an action for annulment against an act which had no legal effect and which could not, therefore, be the subject of an action under Article 230 EC. Consequently, it set aside the order in Athinaïki Techniki v Commission and referred the case back to the General Court for it to rule on Athinaïki Techniki AE's pleas in law, seeking annulment of the Commission's decision of 2 June 2004 to take no further action concerning State aid allegedly granted by the Hellenic Republic to the Hyatt Regency consortium in connection with the public contract for the disposal of 49% of the capital of Casino Mont Parnès.

The second set of proceedings before the General Court

29 By letter of 2 October 2008, the Commission informed the General Court that, on 26 September 2008, it had sent Athinaïki Techniki a letter worded as follows:

'I refer to the letter of [2 December 2004] by which the services of the DG for Competition informed you that, on the basis of the information in its possession, there were insufficient grounds for continuing to examine the file referred to and that in the absence of additional information which would justify continuing the investigation, the Commission had closed the file.

In view of the judgment in [Athinaïki Techniki v Commission], the services of the DG for Competition would like to inform you that that letter has been withdrawn and the abovementioned file has been reopened.

Accordingly, may we repeat our earlier request and ask you again to provide evidence showing that unlawful State aid was granted in connection with the sale of Casino de Mont Parnès.'

30 According to the Commission, the letter of 26 September 2008 meant that, since the case had become devoid of purpose, there was no longer any need to adjudicate.

31 In its submissions of 26 November 2008, lodged in response to the Commission's application for an order that there was no need to adjudicate, Athinaïki Techniki opposed that application.

32 Athinaïki Techniki advanced four pleas in law alleging, respectively, that the letter of 26 September 2008 did not constitute an act which had the effect of making the contested decision void, that the contested decision bringing the preliminary examination to an end was not revocable, that the letter of 26 September 2008 sought, in essence, to remove the contested decision from the ambit of judicial review, and that that letter ran counter to the effect of res judicata resulting from the judgment in Athinaïki Techniki v Commission .

33 In its submissions of 27 November 2008, Athens Resort Casino AE Symmetochon stated that it supported the Commission's application for an order that there was no need to adjudicate.

The order under appeal

34 The General Court held that there was no need to adjudicate on the application for annulment of the contested act on the following grounds, set out in paragraphs 31 to 37 of the order under appeal:

'31 The Commission's letter of 26 September 2008 raises a procedural issue which can be settled without an oral procedure, pursuant to Article 114(3) of the Rules of Procedure.

32 Firstly, it should be pointed out that the Court of Justice has already held, in its order in Case C-222-92 SFEI and Others v Commission [1992] ..., paragraphs 1 and 2, that in an appeal brought against a decision to take no further action on a complaint relating to alleged State aid, reopening the preliminary examination procedure entails withdrawal of the decision to take no further action. The Court then found that that appeal had become devoid of purpose and ruled that there was no longer any need to adjudicate (order in SFEI and Others v Commission, paragraphs 5 and 7, see also, to that effect, Joined Cases C-341-06 P and C-342-06 P Chronopost et La Poste v UFEX and Others [2008] ECR I-4777, paragraph 3, and Case T-613-97 UFEX and Others v Commission [2006] ECR II-1531, paragraphs 8 and 11).

33 Secondly, it is clear from paragraphs 52, 54 and 58 of the above judgment in [Athinaïki Techniki v Commission] that the Court of Justice's finding that the contested act definitively established the Commission's position in relation to the measure under review was necessary in order for that act to be classified as open to challenge. However, once the preliminary examination procedure has been reopened and the applicant has been invited to provide documents in support of its claims, there is no longer any act definitively establishing the Commission's position and therefore open to challenge.

34 Thirdly, it should be noted that the contested act was adopted following a preliminary examination procedure and must be interpreted, according to the judgment in [Athinaïki Techniki v Commission], either as an implied decision finding the measure in question not to be aid within the meaning of Article 87(1) EC, or as an implied decision not to raise objections. Therefore, if it is annulled, the Commission is bound to reopen the preliminary examination procedure and, as the Court of Justice stated in paragraph 40 of Athinaïki Techniki v Commission, formally to adopt one of the decisions referred to in Article 4 of Regulation No 659-1999 or a decision to take no further action, any of which would constitute a new act open to challenge.

35 In those circumstances, the effect of withdrawal of the contested act must be regarded as equivalent to that of a judgment annulling it, since the preliminary examination procedure thus reopened will be closed by one of the formal decisions referred to in Article 4 of Regulation No 659-1999 or by a decision to take no further action. Thus, a judgment annulling the contested decision would not entail any legal consequences beyond the consequences of the withdrawal (order in Case T-178-99 Elder v Commission [1999] ECR II-3509, paragraph 20).

36 The applicant therefore retains no interest in the annulment of the contested act (see, to that effect, Case T-145-95 Proderec v Commission [1997] ECR II-823, paragraph 27, and Elder v Commission, paragraph 21).

37 Accordingly it must be held that this action has become devoid of purpose and there is no longer any need to adjudicate.'

35 The General Court then set out its reasons for considering that the applicant's arguments did not cast any doubt on its conclusion.

36 In that connection, it stated that, as regards, first, the applicant's argument that the letter in dispute referred to the Commission, whilst the letter of 26 September 2008 referred to the services of the Commission, that could not affect the classification of the letter of 26 September 2008.

37 Secondly, the General Court stated that, in its argument that the Commission could not continue to act but should open a formal examination procedure, the applicant did not refer to any rule of law that would oblige the Commission, after withdrawal of a decision to take no further action, to launch a different procedure from the one that lead to that decision.

38 Thirdly, as regards the applicant's allegations, first, that the step taken by the Commission was aimed at removing the decision to take no further action from the ambit of judicial review and, second, that the request to provide information was irrelevant, the General Court pointed out that no legal conclusion was drawn from those allegations.

39 The General Court added that it was not clear from the documents submitted by the applicant in the proceedings before it that the applicant had already explained, in the course of the administrative procedure, how the measures complained of satisfied the conditions governing determination of the existence of State aid, and therefore it could not validly dispute the fact that the Commission's request for additional information constituted a reasonable step in the circumstances of the case.

40 Fourthly, in respect of the applicant's arguments relating to the issue of res judicata, the General Court pointed out that by the judgment in Athinaïki Techniki v Commission, the Court of Justice had set aside the order of 26 September 2006 in Athinaïki Techniki v Commission, but that that judgment did not affect the validity of the decision to take no further action.

Forms of order sought

41 By its appeal, Athinaïki Techniki claims that the Court should:

- set aside the order under appeal;

- uphold the pleas in law submitted before the General Court; and

- order the Commission to pay the costs.

42 The Commission contends that the Court should:

- dismiss the appeal as being manifestly unfounded, and

- order the appellant to pay the costs.

43 Athens Resort Casino AE Symmetochon contends that the Court should:

- dismiss the appeal as being manifestly unfounded, and

- order the appellant to pay the costs.

The appeal

Arguments of the parties

44 The appellant relies on four pleas in support of its appeal.

45 By its first plea, the appellant submits that the General Court misinterpreted the case-law relating to the legal conditions for the withdrawal of an administrative act, according to which withdrawal of such an act is lawful provided the act retracted is unlawful and withdrawal is effected within a reasonable period. On the one hand, the withdrawal decision was taken more than four and a half years after the original decision, that is to say, after more than a reasonable period had elapsed. On the other hand, the statement of reasons for the withdrawal decision refers solely to the judgment in Athinaïki Techniki v Commission, not to the unlawfulness of the decision to take no further action However, as the statement of reasons for a decision involves a matter of public policy, the General Court ought to have raised the lack of a proper statement of reasons of its own motion, and ruled that the withdrawal decision was unlawful.

46 By its second plea, the appellant then claims that the General Court erred in law by failing to rule on the issue of misuse of powers. The appellant observes that the objective of withdrawal of an act can only be to permit the authorities to ensure compliance with the principle of legality. The statement of reasons for the withdrawal in question consisted of no more than a reference to the judgment in Athinaïki Techniki v Commission, which did not rule on the lawfulness of the contested act. Therefore the intention of the Commission in withdrawing the act was not to comply with the principle of legality, but merely to avoid review by the Community judicature.

47 In its third ground of appeal, the appellant complains that the General Court erred in law in finding that the only consequence of the annulment of the decision to take no further action was the obligation to reopen the preliminary examination procedure. Once a direct infringement of Article 87 EC had been found, the Commission should have drawn the appropriate conclusion as to the existence of State aid which, pursuant to Article 88(2) EC, implied that the State in question had to abolish the aid or alter it within a period determined by the Commission.

48 By its fourth plea, the appellant complains that the General Court erred in law in failing to have regard to the principle of res judicata in relation to the judgment in Athinaïki Techniki v Commission. It follows from paragraph 40 of that judgment that the Commission cannot persist in a state of in action in the context of the procedure for examination of State aid. In withdrawing the contested act, the Commission returned to the very situation prevailing prior to the adoption of that decision, and the General Court, by failing to censure such a withdrawal, erred in law. Accordingly the Commission can no longer be allowed to maintain a state of uncertainty. On the contrary, it must reach a decision and must submit if necessary to the decision of the Community judicature.

49 The Commission contends, at the outset, that the complaints concerning the withdrawal of the contested act do not concern the order under appeal, but only that withdrawal, which was not the subject of the dispute before the General Court. Furthermore, the part of the appeal relating to the lawfulness of the withdrawal decision constitutes an abuse. The Commission withdrew the contested act for the benefit of the appellant and potentially to the detriment of its competitor. Therefore the appellant has no interest in raising the question of delay concerning a withdrawal which it was thought would be of service to the appellant. The same applies to the argument concerning the statement of the reason for the withdrawal decision. Those arguments must therefore be dismissed as manifestly inadmissible. In any case, the Commission considers that it was clearly stated in the letter of 26 September 2008 that it was withdrawing the letter in question in view of the judgment in Athinaïki Techniki v Commission, of which the appellant was aware because it was itself the appellant in the case which gave rise to that judgment.

50 On the substance, the Commission responds generally to the pleas relating to misuse of powers and to the consequences of the judgment in Athinaïki Techniki v Commission as, according to the Commission, all those pleas revolve around the idea that it merely wished avoid judicial review of the contested act and reverted to a state of inaction. Those assertions are, however, erroneous because, in reopening the preliminary examination stage, it is in the process of examining the information in the file.

51 Furthermore, the appellant has not established any grounds on which the Commission is required to open a formal investigation procedure. Moreover, the General Court cannot grant more than is sought [ultra petita]. Following withdrawal of the contested decision, the action for annulment has become devoid of purpose and no other claim concerning the Commission's 'procedere' [manner of proceeding] is covered by the form of order sought in the application.

52 Athens Resort Casino AE Symmetochon submits that, as there are no special rules, the general principles governing the withdrawal of administrative acts are the principles of legality and protection of the legitimate expectations of the person concerned. Inasmuch as the appellant has from the beginning disputed the lawfulness of the contested act, it cannot avail itself of that principle of protection of legitimate expectations. Furthermore, with regard to the statement of reasons for the act, it is not essential, according to the case-law, for the reasons to be stated by the act itself, but they may be inferred indirectly from the relevant rules or the context of the act in question.

53 Furthermore, Athens Resort Casino AE Symmetochon considers, first, that not only was the Commission not avoiding judicial review, on the contrary it went further than required by the judgment in Athinaïki Techniki v Commission in so far as it decided to recommence the investigation, thus agreeing to look at new evidence of which it had previously been unaware. Secondly, it follows from that judgment only that the Commission was not entitled to remain inactive, but had to terminate the procedure in question by taking a decision within a reasonable period after the complaint was lodged, and not return to the preliminary examination procedure, which in this particular case was no longer permitted.

Findings of the Court

Admissibility

54 Regarding the alleged inadmissibility of the complaints challenging the legality of the withdrawal of the contested act because they relate to the withdrawal decision, it is to be observed that those complaints are in fact directed against the order under appeal and not the withdrawal decision. The appellant, in its various pleas, in essence, claims that the General Court committed an error of law by taking into account the withdrawal of the contested act even though such withdrawal was unlawful.

55 Regarding the argument that those same complaints are inadmissible because the withdrawal decision was not the subject of the action before the General Court, it must be pointed out that, on the contrary, it is clear from the order under appeal that those complaints were indeed submitted by Athinaïki Techniki before the General Court and that they formed part of the context of that dispute. In the order under appeal, the General Court ruled on the question of whether, as a result of the Commission's letter of 26 September 2008 in which it informed Athinaïki Techniki, inter alia, that the contested act had been withdrawn, an action against that act had become devoid of purpose. Furthermore, as is clear from paragraphs 23 to 30 of that order, Athinaïki Techniki challenged, before the General Court, the lawfulness of the withdrawal referred to in the letter of 26 September 2008.

56 Lastly, there is no basis to the submission that the appellant had no interest in challenging the General Court's assessment of the lawfulness of the withdrawal of the contested act since that interest depended directly on the reply to the question whether the action brought against the contested act had become devoid of purpose or not, which forms the subject of the present dispute.

57 It follows that the grounds of appeal are admissible in their entirety.

Substance

58 By its first, second and fourth pleas, the appellant claims that the General Court erred in law by holding that there was no longer any need to adjudicate on the action insofar as the Commission's decision of 26 September 2008 constituted an act withdrawing the contested act, although that withdrawal was illegal.

59 It should be noted, first, that by arguing in that regard that the withdrawal of the contested act was not effected within a reasonable period, the appellant relies on case-law relating to retroactive withdrawal of an unlawful administrative act creating subjective rights (see Case C-54-77 Herpels v Commission [1978] ECR 585, paragraph 38, Case C-14-81 Alpha Steel v Commission [1982] ECR 749, paragraph 10, Case C-15-85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, paragraph 12, and Case C-90-95 de Compte v Parliament [1997] ECR I-1999, paragraph 35).

60 However, it is common ground that the contested act does not, vis-à-vis the appellant, constitute an act giving rise to rights but rather an act adversely affecting it. Therefore the case-law referred to in the previous paragraph is irrelevant in the present case.

61 Nevertheless, it must be observed that, in the present case, the Commission informed the appellant, in its letter of 26 September 2008, that in view of the judgment in Athinaïki Techniki v Commission, it was withdrawing the letter in dispute, reopening the preliminary examination procedure and repeating its earlier request to Athinaïki Techniki to submit to it evidence proving the grant of State aid, and that it had withdrawn the contested act.

62 In Athinaïki Techniki v Commission, the Court of Justice set out the Commission's obligations when, pursuant to Article 10(1) and the first sentence of 20(2) of Regulation No 659-1999, an interested party sets in motion the preliminary examination stage under Article 88(3) EC.

63 The Court thus held that Article 13(1) of Regulation No 659-1999 obliges the Commission, once any additional comments have been lodged by interested parties, or the reasonable period has expired, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, raising no objections, or initiating the formal investigation procedure (see Athinaïki Techniki v Commission, paragraph 40).

64 The Commission is not therefore authorised to persist in its failure to act during the preliminary examination stage. Once that stage in the procedure has been completed, it is bound either to initiate the next stage of the examination procedure, or to adopt a definitive decision to take no further action and, where the Commission takes such a decision on the basis of information supplied by an interested party, it must send that party a copy of that decision (see Athinaïki Techniki v Commission, paragraph 40).

65 In the event, the Court of Justice held that, by the contested act, the Commission had closed the file for the purposes of administrative action. By that act, the Commission decided to bring to an end the preliminary examination procedure initiated by Athinaïki Techniki, stated that the review initiated had not enabled it to establish the existence of State aid within the meaning of Article 87 EC and it implicitly refused to initiate the formal investigation procedure provided for in Article 88(2) EC (see Athinaïki Techniki v Commission, paragraphs 51 and 52).

66 The Court thus considered that the Commission had adopted a definitive position on Athinaïki Techniki's request for a finding of infringement of Articles 87 EC and 88 EC. Furthermore, as the contested act prevented Athinaïki Techniki from submitting its comments during the formal investigation procedure referred to in Article 88(2) EC, it produced binding legal effects which were capable of affecting Athinaïki Techniki's interests. The contested act did, therefore, constitute an act open to challenge for the purposes of Article 230 EC (see Athinaïki Techniki v Commission, paragraphs 58, 61 and 62).

67 The appellant, as a party to whom the procedural guarantees under Article 88(2) EC apply, was therefore entitled, in its capacity as a person directly and individually concerned by the act in question for the purposes of the fourth paragraph of Article 230 EC, to challenge the lawfulness of the contested act (see, to that effect, Case C-367-95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraphs 41 and 48). More specifically, Athinaïki Techniki was entitled to obtain a review by the Community courts of the Commission's assessment that, on the evidence available to it on 2 June 2004, it could legitimately decide to take no further action in the case and by implication indicate that there was no need to open a formal examination procedure.

68 If the Commission were entitled to withdraw an act such as the contested act in those circumstances, it could perpetuate a state of inaction during the preliminary examination stage, contrary to its obligations under Articles 13(1) and 20(2) of Regulation No 659-1999 and avoid any judicial review. As the Advocate General stated in point 101 of his Opinion, it would be sufficient for the Commission to decide to take no further action on a complaint lodged by an interested party and then, after that party brought an action, to reopen the preliminary examination stage and repeat those operations as many times as are necessary in order to avoid any judicial review of its actions.

69 To allow such a possibility would needless to say run counter to the legal certainty that Regulation No 659-1999 specifically seeks to enhance, as stated in the third, seventh and eleventh recitals in the preamble to that regulation.

70 Having regard to the requirements of good administration and legal certainty and the principle of effective legal protection, it must be considered, on the one hand, that the Commission may only withdraw a decision to take no further action on a complaint regarding alleged unlawful aid in order to remedy illegality affecting that decision, and on the other hand, that the Commission cannot, after such withdrawal, pick up the procedure again at a stage earlier than the exact point at which the illegality found had occurred.

71 In the present case, it does not appear that the letter of 26 September 2008 was seeking to remedy illegality affecting the contested act. That letter did not state the nature of the illegality vitiating the contested act, which alone could justify its withdrawal.

72 In that letter, the Commission simply informed Athinaïki Techniki that '[I]n view of the judgment in [Athinaïki Techniki v Commission], the services of the DG for competition would like to inform you that that letter has been withdrawn and the abovementioned file has been reopened'. It is common ground that in that judgment the Court did not rule on the legality of the contested act but only on its classification as an act open to challenge, so that that mere reference alone cannot justify the decision to withdraw the contested act.

73 Furthermore, as regards the Commission's argument that the contested act had to be withdrawn because it did not provide sufficient reasons in law, it must be observed that such illegality could have been remedied by the adoption of a fresh decision to take no further action and therefore did not, in any event, justify reopening the preliminary examination stage.

74 In light of all of those considerations, it must be held that the General Court erred in finding that the Commission was entitled to withdraw the contested act in the circumstances set out in the letter of 26 September 2008.

75 Therefore, the appellant's first, second and fourth grounds of appeal complaining that the General Court held that the contested act had been withdrawn, even though such withdrawal was unlawful, are well founded.

76 In those circumstances, it is not necessary to examine the appellant's third ground of appeal.

77 It follows from the foregoing that the appeal must be upheld and the contested order set aside.

Reference of the case back to the General Court

78 Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

79 In the circumstances of the present case, the Court does not consider itself to be in a position to determine the case since the General Court has not examined the substance of the Athinaïki Techniki's action against the contested act.

80 The case must therefore be referred back to the General Court for a decision on Athinaïki Techniki's claim that the contested act should be annulled.

Costs

81 Since the case has been referred back to the General Court, the costs relating to the present appeal proceedings must be reserved.

On those grounds, the Court (Third Chamber) hereby

1. Sets aside the order of the General Court of 29 June 2009 in Case T-94-05 Athinaïki Techniki v Commission.

2. Refers the case back to the General Court of the European Union.

3. Orders that the costs be reserved.