C-398/00
ECLI:EU:C:2002:114
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OPINION OF MR ALBER — CASE C-398/00
O P I N I O N OF ADVOCATE GENERAL ALBER delivered on 21 February 2002 1
I — Introduction period starts to run at the time of receipt (in this case, Friday 28 July 2000) or regis- tration of the fax (in this case, Monday 31 July 2000). The other is whether the Commission must decide to open the formal procedure within the deadline (which in this case it did on 17 August 1. This action for annulment brought by 2000) or whether it must serve the relevant the Kingdom of Spain is directed against decision (which in this case it did on the decision by the Commission of 17 Au- 23 August 2000). gust 2000 to initiate the formal investi- gation procedure under Article 88(2) EC (formerly Article 93) to examine aid for the benefit of Santana Motor SA (hereinafter 'the contested decision'). 2
2. At the centre of the litigation is the time-limit of 15 working days provided in Article 4(6) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying 3. The Member State concerned must down detailed rules for the application of inform the Commission of new aid. After Article 93 of the EC Treaty (hereinafter such notification, the Commission may, 'Regulation No 659/1999'), 3within which where doubts arise, initiate a formal exam- the Commission may, if necessary, initiate ination procedure within two months. an investigation procedure after being noti- Where the Commission fails to take a fied by a Member State of the implemen- decision, the aid is deemed to have been tation of aid measures. One of the issues authorised and the relevant Member State disputed by the parties is whether, since may implement it, unless, after the requisite notification was by fax, the prescribed further notification by the Member State of implementation of the measures, the Com- mission decides within 15 days to initiate 1 — Original language: German. an investigation. Thus, expiry of the time- 2 — OJ 2000 C 328, p. 19. limit would result in the notified aid 3 — OJ 1999 L 83, p. 1. measures being regarded as existing aid.
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I I— Legal background 4. Where the Commission, after a prelimi- nary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it shall decide to initiate proceedings pur- 4. Article 88 EC regulates the procedure suant to Article 93(2) of the Treaty (here- for monitoring and authorising State aid by inafter referred to as a "decision to initiate the Commission. The procedure is set out the formal investigation procedure"). in more detail in Regulation No 659/1999 which was made under Article 89 EC. Article 4 of Regulation No 659/1999 states: 5. The decisions referred to in paragraphs 2, 3 and 4 shall be taken within two months. That period shall begin on the day following the receipt of a complete notifi- cation. The notification will be considered as complete if, within two months from its receipt, or from the receipt of any addi- tional information requested, the Commis- sion does not request any further infor- mation. ...
1. The Commission shall examine the notification as soon as it is received. With- out prejudice to Article 8 [which relates to withdrawal of notification] the Commis- 6. Where the Commission has not taken a sion shall take a decision pursuant to decision in accordance with paragraphs 2, paragraphs 2, 3 or 4. 3 or 4 within the period laid down in paragraph 5, the aid shall be deemed to have been authorised by the Commission. The Member State concerned may there- upon implement the measures in question after giving the Commission prior notice thereof, unless the Commission takes a 2. Where the Commission ... finds that the decision pursuant to this Article within a notified measure does not constitute aid, it period of 15 working days following shall record that finding by way of a receipt of the notice.' decision.
III— Facts 3. Where the Commission ... finds that no doubts are raised as to the compatibility with the common market of a notified measure ... it shall decide that the measure 5. The Spanish authorities had been in is compatible with the common market ... contact with the Commission since 2 July
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1998 because of a bank guarantee granted under Article 88(3) EC. The decision which to the Santana Motor SA company in June is the subject of this action was, however, 1998. By a letter dated 1 July 1999, the only served on the Kingdom of Spain on Spanish Government informed the Com- 23 August 2000, by letter dated 22 August mission of its intention to award that 2000. company additional aid. Notice thereof — an injection of capital and regional aid — was given in accordance with Article 88(3) EC by means of letters dated 30 July 1999 and 17 November 1999. The Commission considered the notification to be incomplete and requested additional information, which it received IV — Applications and procedure on 24 May 2000.
8. The Kingdom of Spain brought an action on 30 October 2000. It claims that the Court should 6. In a letter of Friday 28 July 2000, which was faxed to the competent Directorate- General on the same day at 17.49, the Spanish authorities informed the Commis- sion, referring to Article 4(6) of Regulation (1) annul the decision of the Commission No 659/1999, that the regional govern- of 22 August 2000 in respect of all the ment of Andalusia was going to implement measures adopted other than the guar- the measures which had been notified. The antee of June 1998; fax was registered by the Commission on Monday 31 July 2000.
(2) order the Commission to bear the costs of the proceedings.
7. On 17 August 2000, the Commission decided to initiate the formal investigation procedure in accordance with Article 88(2) EC. The Permanent Representation of the Kingdom of Spain was informed by fax on 9. The Commission contends that the the same day that the Commission had Court should taken this decision. On 18 August 2000, the Commission sent a further letter to the Permanent Representation, in which it again referred to the decision taken the previous day, and to the fact that imple- mentation was consequently prohibited (1) dismiss the application;
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(2) order the applicant to bear the costs of The prescribed period of 15 working days the proceedings. had already expired when the Commis- sion's decision was served on the Spanish authorities.
There was no oral hearing.
13. The Commission received the letter from the Spanish authorities of 28 July 2000 notifying implementation of the measures by fax on the same day. That started time running. The fact that the letter was only registered by the Commis- V — Submissions of the parties sion's staff on 31 July 2000 is immaterial to commencement of the prescribed period. As a matter of principle, it can only be the date of receipt of a letter by the addressee that is decisive, not the date on which it comes to the knowledge of the responsible A — Kingdom of Spain case officer.
10. The Spanish Government begins by arguing that the contested decision is an act that may be challenged by an appli- 14. This is apparent from the competition cation for annulment because it has legal rules for State aid published by the Com- consequences, in that it classified the aid mission. 4Annex 1 to the Guide to pro- concerned as new aid. cedures in State aid cases states that, as a matter of principle, time-limits run from receipt of the relevant correspondence. This is reinforced in footnote 106 of the guide, which states that, in the case of trans- mission by fax, time starts to run on 11. However, it is actually existing aid, to dispatch. which Article 88(2) EC does not apply.
15. Hence, time started to run on Monday 12. The measures were duly notified. More 31 July 2000 — the first working day than two months passed from receipt of the additional information requested by the Commission on 24 May 2000. Article 4(6) 4 — Commission publication: Competition law in the European of Regulation No 659/1999 thus applied. Communities, Volume IIA, 1999.
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following receipt of the letter — and Commission of 22 August 2000, which ended on 21 August 2000. Thus, service was delivered on 23 August 2000. of the decision was only effected after the prescribed period had expired.
19. The decision taken on 17 August 2000 16. Compliance with the time-limit can was merely of a preliminary nature, and is only be determined by reference to the date not to be regarded as a legal act within the of service. When the Commission reached meaning of Article 249 EC. The actual the decision internally is not decisive. A decision was only taken on 22 August decision cannot give rise to legal con- 2000, and thus after the prescribed period sequences for the addressee before it is had expired. served upon him. That is clear from Article 254(3) EC, according to which decisions only take effect once the addressee has notice of them.
20. Furthermore, the Spanish Government claims that the Commission did not give an 17. If the matter were to turn on the point adequate statement of reasons for the in time when the decision is taken, this contested decision. It is not apparent from could also lead to considerable legal uncer- the decision that the Commission con- tainty. It is difficult for outsiders to deter- sidered the measures to be incompatible mine when a decision has been taken with the Treaty. Rather, it must be assumed internally by the Commission. The Com- that the decision was only taken to prevent mission could, after taking a decision, delay the period under Article 4(6) of Regulation at will notifying that decision to the No 659/1999 from expiring. Member State, with the result that the Member State could even implement aid measures without knowing of the decision. At a later stage, the Commission could then plead non-expiry of the prescribed period.
B — The Commission
18. Nor can the fax sent to the Spanish authorities on 17 August 2000 be a sub- stitute for service. This simply informed them that the Commission had taken a 21. The Commission, on the other hand, is decision pursuant to Article 88(2) EC. This of the view that the contested decision was communication must, however, be distin- taken within the period prescribed by guished from the decision itself, which, Article 4(6) of Regulation No 659/1999, with the requisite statement of reasons, was and that the measures concerned do not, only contained in the letter' from the therefore, constitute existing aid.
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22. Time only started to run on 1 August 24. If the decision were required to be 2000, the day after registration. Notifi- notified to the Member State within 15 cation under Article 4(6) of Regulation working days, the rule in Article 25 of No 659/1999 is not admissible by fax. To Regulation No 659/1999 would be super- ensure legal certainty, notification must be fluous. There would be no sense in putting made in the same form as notification of the Commission under an obligation to give aid. The extract from the Guide to pro- notice of a decision without delay, if the cedures in State aid cases to which the Member State has to be given notice of the applicant refers only applies to less import- decision within a specific period in any ant communications. For procedural rea- event. sons, such notification must also be directed to the Secretariat-General, and not the competent Directorate-General. Futhermore, the fax was received outside office hours on Friday at 17.49, so it was not possible to take cognisance of it that 25. The reference to Article 254(3) EC is day. also misconceived. It cannot be concluded from this provision that a decision of which no notice has been given is ineffective or non-existent as Article 254(3) EC does not relate to the validity of a decision, only its effectiveness with regard to the addressee.
26. Besides, the decision was taken on 17 August and not only on 22 August 2000 as the applicant argues. Under the fourth paragraph of Article 12 of the Commis- 23. In addition, the prescribed period was sion's Rules of Procedure, 5 a decision by interrupted by the decision of 17 August means of written procedure stands adopted 2000. Interruption is determined by refer- when the time-limit set for the procedure ence to when the decision is taken not when has expired without any member of the it is served. This is apparent just from the Commission having made and maintained text of Article 4(6) of Regulation reservation. This was the case on 17 August No 659/1999, according to which the 2000. Member State may implement the aid measures unless the Commission 'takes a decision ... within a period of 15 working days . . . ' . Regulation N o 6 5 9 / 1 9 9 9 expressly distinguishes between the adop- tion of a decision and giving notice of it as 27. The Commission considers the further the Commission is expressly required in objection that the Commission did not Article 25 to inform the Member State concerned without delay of decisions taken pursuant to this provision. 5 — OJ 1999 L 252, p. 41.
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provide adequate reasons for the contested Before Regulation No 659/1999 came into decision to be inadmissible. The compati- force, the Court had established that the bility of the aid with Community law is not decision by the Commission to initiate the finally determined by initiation of the formal investigation procedure under procedure under Article 88(2) EC, so the Article 88(2) EC is one which may be applicant is not prejudiced in this respect. challenged; it has independent legal con- sequences in that the measure is classified as new, rather than existing, aid. 7
VI — Legal assessment 30. Different procedures are associated with this classification. Whereas existing aid is examined in accordance with Article 88(1) EC by the Commission in cooperation with Member States, new aid is subject to the requirements of Article 88(2) and (3) EC, and may not be A — Admissibility implemented until authorised by the Com- mission.
28. Although the Commission has not pleaded inadmissibility, under Article 92(2) of the Court's Rules of Procedure, the 31. Besides, according to the case-law 8 Court may, at any time, of its own motion which pre-dated the entry into force of consider whether there exists any absolute Regulation No 659/1999, it is not a ques- bar to proceeding with a case, in particular, tion of such a decision being a purely whether the measure in dispute constitutes preliminary measure, against whose effects a legal act capable of being challenged. 6 only legal action against the final decision would guarantee adequate legal protection. In particular, such an action would not make it possible subsequently to reverse, by means of the later payment of aid, the possible consequences of a delay in imple- menting the aid measures arising from 29. According to Article 230 EC, a compliance with the third sentence of decision may, as a matter of principle, only Article 88(3) EC. be challenged if it has legal consequences.
7 — Case C-312/90 Spain v Commission [1992] ECR I-4117, 6 — Case C-313/90 CIRFS and Others v Commission [1993) paragraphs 19 et seq. ('Cenemesa'), and Case C-47/91 Italy ECR I-1125, paragraph 23, and Joined Cases C-305/86 and v Commission [1992] ECR I-4145, paragraphs 27 et seq. C-160/87 Neotype Techmashexport v Commission and ('Italgrani). Council [1990] ECR I-2945, paragraph 18. 8 — Cited in footnote 7.
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32. Advocate General Stix-Hackl has 1. Commencement of the prescribed period recently queried whether these authorities still apply, even after the coming into force of Regulation No 659/1999. 9In her view, the consequences of the decision to initiate the formal procedure are not irreversible. 10 As a preliminary procedural measure, the decision may not, therefore, be chal- lenged. 11 The Court did not, however, 34. First, it must be noted that the Com- endorse this view, but adhered to its case- mission's submissions concerning the Span- law hitherto. 12 It follows that the action ish Government's notification by fax of for annulment of the contested decision implementation of the measures of 28 July was b r o u g h t in a c c o r d a n c e with 2000 are contradictory. The Commission Article 230 EC. considers, on the one hand, that notifi- cation under Article 4(6) of Regulation No 659/1999 should have been sent to the Secretariat-General by post, with a request for acknowledgement of receipt. It does not consider the Spanish Govern- ment's chosen path of sending the letter in question to the competent Directorate- General by fax to be permissible. On the other hand, it does not deny that this same B — Reasoning fax started time running once its receipt had been registered on 31 July 2000. But if transmission by fax was not permissible, the notification would have no legal effect, and, in particular, could not have started time running.
33. The application would succeed if the contested decision had not been taken within the period prescribed by Article 4(6) of Regulation No 659/1999. The decision would then be defective in law, as the measures benefiting Santana Motor SA would have to be classified as existing aid 35. However, Regulation No 659/1999 once the deadline of 15 working days had does not prescribe a particular form either expired, and the Commission would no for the notification or for other communi- longer have had the power directly to cations required, under the aid procedure, initiate the formal investigation procedure. to be directed to the Commission. Article 2(2) of Regulation No 659/1999 merely deals with the requirement that the 9 — Opinion in Case C-400/99 Italy v Commission [2001] ECR Member State must provide all necessary I-7303, I-7306. 10 — Opinion in Case C-400/99, cited in footnote 9, points 43 information in its notice. It is thus not clear et seq., particularly point 52. from Regulation No 659/1999 itself 11 — Opinion in Case C-400/99 Italy v Commission, cited in whether fax is a permissible method of footnote 9, point 77 (summarised). 12 — Case C-400/99 Italy v Commission, cited in footnote 9. delivery.
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36. By contrast, it appears from Annex 1 to cance of an action depends on whether it the Guide to procedures in State aid has legal consequences, and, if so, fax cases, 13 that the Commission itself con- transmission must be excluded. Yet any siders fax to be a permissible method of letter which starts time running or inter- delivery as it contains a provision for rupts it has legal consequences for that calculating time-limits, according to which reason alone. If the Commission's assess- time-limits generally start to run on receipt ment is taken to its logical conclusion, of the relevant correspondence, and spe- letters which affect time-limits should not, cifically in the case of fax transmission, on as a rule, be sent by fax. The question in dispatch. Such a provision would be super- that case remains: what is the purpose of fluous if correspondence directed to the the indications in the guide on calculating Commission could not be sent by fax. time-limits for fax transmissions?
37. The Commission's objection, that this 39. Transmission of correspondence by fax provision only applies to less important machine is technologically advanced and communications, and specifically does not very widespread nowadays. Fax is a secure apply to communications which have legal and time-saving method of communication. consequences, is not supported by the In so far as no specific procedural regu- guide. Annex 1 to the guide relates to all lations exist, requiring written communi- time-limits in aid review procedures, as is cations to be submitted either in the evident from the introductory phrase in the original, or bearing an original signature, section 'Counting of time-limits' ('Time- or specific methods of transmission (rec- limits are laid down for various kinds of orded delivery, request for acknowledge- action in State aid cases'). This statement ment of receipt, etc.) fax must, in principle, about determining when time-limits begin be seen as a permissible means of sending in footnote 106 of the guide applies equally communications to the Commission. to fax transmission generally. There is no discernible distinction between 'important' and 'less important' actions or time-limits.
40. It must however be taken into account that sending correspondence by fax is not always problem free. In certain cases, faults 38. According to the Commission's sub- in the sending or receiving fax machines missions in these proceedings, the signifi- can inhibit transmission. Less than perfect transmission can prevent communications from being directed to the recipient, or can 13 — Cited in footnote 4, p. 49. render the content unintelligible. Such a fax
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certainly cannot start time running if the of a letter is intended to be evidenced by the fault lies with the sender. The fact that sender's signature on the original. Thus, transmission problems can arise in individ- Article 37(6) of the Court's Rules of Pro- ual cases does not, however, mean that the cedure, for example, permits transmission fax machine is generally unreliable as a of written statements by fax in order to means of communication. As the Guide to comply with time-limits in proceedings. procedures in State aid cases shows, 14 However, this applies only if the signed despite these generally known risks, the original is received no more than 10 days Commission has in principle acknowledged later. This special provision in the Court's the possibility of fax transmission. Rules of Procedure is necessary because it is a derogation from the general rule in Article 37(1) of the Rules of Procedure, by which statements are required to be lodged in original form and signed by the party's attorney or lawyer.
41. In this case, there is no indication that the communication from the Kingdom of Spain on 28 July 2000 was not transmitted in full. Although, a transmission report does not in all cases constitute proof that the whole of a document has reached the 43. It is not apparent from the files, nor is it recipient, as it can merely serve as evidence significant in this case, whether and, if so, that the fax has left the sender's machine, when, the Spanish Government's notifi- the Commission did not deny that the letter cation of 28 July 2000 was sent by post. was transmitted in full in this particular In the absence of appropriate procedural case. The document which the Commission rules, such as those in the Court's Rules of registered on 31 July 2000 is the very letter Procedure, notification under Article 4(6) which was transmitted by fax. It is hardly of Regulation No 659/1999 should not be credible that the Commission would have subject to similarly stringent requirements registered without further enquiry a com- as to proof of authorship. munication which was incomplete on receipt.
44. According to the provision contained in Rule 1.2.2 of the competition rules appli- 42. Fax could, of course, be an unsuitable cable to State aid, 15 notification of new aid method of transmission if the authenticity 15 — Cited in footnote 4, p. 28; see specifically for motor vehicles: Community framework for State aid to the motor 14 — Cited in footnote 4. vehicle industry (OJ 1997 C 279, p. 1).
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must generally be sent to the Secretariat- without saying that similar time savings General of the Commission. As the text could be achieved by direct transmission of indicates, however, this rule only applies all communications to the competent directly to the notification itself, and not to Directorate-General, and not just the other communications required to be notification. directed to the Commission.
45. There is no reason to extend the 47. The fact that the fax reached the application of this rule to other communi- Commission outside office hours has no cations. The scheme and purpose of the effect on the commencement of the time- rule is to concentrate the receipt of notifi- limit. It is fundamentally irrelevant when cations in one central area — in this case the responsible case officer becomes aware the Secretariat-General. This is because of a communication. That is clear from new aid must first be registered in the Annex 1 to the Guide to procedures in central register of all pending State aid State aid cases 18 according to which a cases, and be allocated to the competent time-limit commences on receipt of cor- Directorate-General. 16 Once this has hap- respondence or, in the case of fax trans- pened, there is no further need for cor- mission, on dispatch. In other words, it is respondence to be directed to one central not dependent on when the particular place. On the contrary, it is in the interest recipient takes cognisance of it. It must of the competent Directorate-General to also be taken into account that when that receive communications from Member occurs is often a matter of chance and not States as quickly as possible, i.e. without at all capable of being calculated by the being diverted via the Secretariat-General. sender. If the point when the recipient This applies particularly where the com- becomes aware of the communication were munication has legal consequences, as, for decisive, that would lead to considerable example, in this case, the commencement legal uncertainty. of a short time-limit.
48. Article 3 of Council Regulation (EEC/ 46. The Commission itself has determined Euratom) No 1182/71 of 3 June 1971 on in 1.2.2 of the Guide to procedures in State determining the rules applicable to periods, aid cases 17 that it saves time in dealing dates and time-limits 19 (hereinafter 'Regu- with the notification if it is sent direct to the lation No 1182/71') determines the point competent Directorate-General. It goes in time which is relevant for the com- mencement of a time-limit measured in 16 — See Annex 1 to the Guide to procedures in State aid cases, rules on the organisation of the Commission, cited in footnote 4. 18 — Cited in footnote 4. 17 — Cited in footnote 4, p. 30. 19 — OJ, English Special Edition 1971 (II), p. 35.
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days. Under that provision, the day on 2. On the interruption of the prescribed which a particular event occurs, or action period takes place, is not counted. The time of dispatch of the fax is what causes the time-limit to start to run.
(a) Time of adoption of the decision
49. This provision ensures that the dur- ation of the prescribed period does not depend on the hour when the event which started time running occurred. 20 Thus, the 51. The decision taken by the Commission fact that the communication from the on 17 August 2000 is — contrary to the Spanish Government arrived at the Com- view taken by Spain — not merely pre- mission after close of business did not cause liminary in nature, but represents a legal the prescribed period of 15 working days to act with its own legal consequences, to be curtailed. which Articles 249 and 254 EC apply. The process of taking the decision is governed in more detail by the Commission's Rules of Procedure.
50. Thus, the period began on the first working day following 28 July 2000, that 52. In principle, under Article 4 of its Rules is — since working days, according to of Procedure, 22 the Commission is to take Article 2(2) of Regulation No 1182/71, decisions at meetings, by written procedure are any days except public holidays, Satur- or by delegation. The written procedure days and Sundays — on Monday 31 July used in relation to the contested decision in 2000. In accordance with Article 3(2)(b) of this case is set out in Article 12 of the Rules Regulation No 1182/71, the deadline of Procedure. According to paragraph 4 of expired at the end of 21 August 2000. In Article 12, a proposal by the Commission the calculation, 5/6, 12/13 and 19/20 Au- stands adopted if no member of the Com- gust 2000, being Saturdays and Sundays mission has made a reservation and main- were not to be counted, nor was 15 August, tained it up to the time-limit set for a as a public holiday for the Commission, 21 written procedure. The decision-making as these were not working days. process within the Commission is com- pleted when the time-limit expires. At this point, a resolution is made to adopt the 20 — On the corresponding provision in the Court's Rules of Procedure, see Case 152/85 Misset v Council [1987] ECR 223, paragraph 7. 21 — See OJ 1999 C 379, p. 26. 22 —OJ 1999 L 252, p. 41.
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decision. This is not precluded by the fact 55. The conclusion may be drawn from the that the letter served on the Spanish auth- context of Regulation No 659/1999 as a orities bears a later date — 22 August whole that the legislature drew a distinc- 2000 — as the letter simply served to give tion in principle between taking, and giving details of, and to communicate, the notice of, a decision because Article 25 of decision adopted on 17 August 2000. Fur- Regulation No 659/1999, which requires thermore, since, as will be explained, ser- the Commission to notify the Member State vice alone is decisive, neither date is concerned of its decision without delay, material. contains an express provision on notifi- cation.
53. As the decision taken on 17 August 2000 was only communicated to the King- 56. However, contrary to the Commis- dom of Spain on 23 August 2000, and thus sion's view, it cannot be concluded from after the deadline had expired, it is necess- this that the provision in Article 25 of ary to clarify, by construction of Regulation No 659/1999 would be super- Article 4(6) of Regulation No 659/1999, fluous if the Commission was already the event that causes the prescribed period fulfilling the obligation to notify the to be interrupted. addressee concerned within a particular period. First, this general rule applies to all decisions to be taken under Regulation No 659/1999, including those which are not subject to a deadline. And secondly Article 25 requires the Commission to act 'without delay' and thus more quickly than is generally required in order to comply (b) Construction of Article 4(6) of Regu- with a time-limit. lation No 659/1999
5 7 . A r t i c l e 4 ( 6 ) of R e g u l a t i o n 5 4 . A c c o r d i n g to the w o r d i n g of No 659/1999 must, however, be construed Article 4(6) of Regulation No 659/1999, in the light of the Treaty. According to it is the taking of the decision which is settled case-law, provisions of Community decisive, as the 'Member State concerned law derived from the EC Treaty are, as far may ... implement the measures in question as possible, to be construed in such a way after giving the Commission prior notice as to be compatible with it. 23 thereof, unless the Commission takes a decision pursuant to this Article within a period of 15 working days following 23 —Joined Cases 201/85 and 202/85 Klensch (1986] ECR 3477, paragraph 21, and Case C-314/89 Raub [1991] ECR receipt of the notice' (emphasis added). I-1647, paragraph 17.
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5 8 . T h e EC T r e a t y p r o v i d e s in 61. The Commission, on the other hand, Article 254(3) EC for decisions to be effec- takes the view that a distinction must be tive (only) on notice being given. Unlike drawn between the validity of the decision regulations, Article 254(2) EC does not as such (validité intrinsèque), which takes require the publication of decisions in the effect when the Commission takes the Official Journal. Notification is thus essen- decision, and its effectiveness vis-à-vis third tial in order for a decision to take effect. 24 parties. The latter is governed by Article 254(3) EC. Article 4(6) of Regu- lation No 659/1999, however, relates to its validity as such.
59. According to case-law of the Court, a measure adopted by the public authorities 62. This argument cannot be accepted. A shall not be applicable to those concerned legal act which is concluded but not yet before they have the opportunity to make notified may well have latent or delayed themselves acquainted with it. 25 This must validity which is conditional upon notice. also apply if those affected by that act are In particular, it may not be amended during not individuals but Member States. this stage. 26
63. However, in order to produce legal consequences vis-à-vis the addressee — and that is what is in issue here — the 60. In the light of Article 254(3) EC, addressee must have had notice of the legal Article 4(6) of Regulation No 659/1999 is act. The decision to initiate the formal to be interpreted as meaning that it is not procedure is also intended to interrupt the the date of the Commission's decision that period prescribed in Article 4(6) of Regu- is significant for the purposes of inter- lation No 659/1999 and thus prevent the ruption of the time-limit, but rather notice Member State from implementing the aid. of the decision. The decision cannot have this effect unless the Member State has notice of it. 24 — See Opinion of Advocate General Van Gerven in Case C-137/92 P Commission v BASF AC and Others [1994] ECR I-2555, I-2559, point 62. 26 — Case 131/86 United Kingdom v Council [1988] ECR 905, 25 — Case 98/78 Racke [1979] ECR 69, paragraph 15. paragraphs 34 et seq. ('Legehennen').
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64. This analysis is also consistent with the the compatibility with the Treaty of a scheme and purpose of the provisions particular aid, which may be a matter of relating to time-limits in Article 4 of Regu- urgency, would be jeopardised if the period lation No 659/1999. As with all time-li- were to be regarded as merely indicative. mits, the time-limits laid down in that Moreover, the legal uncertainty that would article also serve to ensure legal certainty result could be aggravated if the prelimi- and security. Article 4 enshrines in statu- nary examination phase were artificially tory form the principles first developed by prolonged.' the Court in Lorenz. 2 7 The Court gave further grounds for these principles in the Siemens case. 28
66. The Commission has not, it is true, cast any doubt on the binding nature of the 65. It is true that the findings of the Court 15-working-day deadline. But if inter- in that case, which are set out below, relate ruption of the deadline was effected by to the Commission's two-month time-limit the Commission's decision, and not notice for initiating the formal procedure. But of the decision to the Member State, the they can also be transposed to the time- deadline would be extended so far as the limit of 15 working days following notice Member State was concerned. by the Member State that it is implement- ing the aid. The Court held: 29
67. Whether and when the Commission 'By drawing guidance from Articles 173 has taken a decision internally is not, as a and 175 of the Treaty, and by thus [in the rule, something the Member State con- Lorenz case] assessing the maximum dur- cerned can ascertain. In principle, aid ation of the period at two months, the measures may be implemented once the Court intended to remove a legal uncer- deadlines provided for in Article 4 of tainty manifestly contrary to the objective Regulation No 659/1999 have expired. If of the preliminary stage of the procedure the interruption of the deadline depended for State aid under Article 93(3) of the on when the decision was taken (inter- Treaty. That objective, which is to offer nally), this would mean that the Member Member States the legal certainty they State, despite having already waited for at require by informing them quickly as to least two months for a decision by the Commission and the 15-working-day period having expired, could still not rely 27 — Case 120/73 Lorenz [1973] ECR 1471. upon approval being deemed to have been 28 — Case C-99/98 Austria v Commission [2001] ECR I-1101, paragraph 73 ('Siemens'). granted under Article 4(6) of Regulation 29 — Siemens case, cited in footnote 28, paragraph 73. No 659/1999. The Member State would
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have to wait even longer to implement the notice, or rather, communication of the measures so as not to risk having to recover action in question. If the period under the aid later. Nor would it be clear how Article 4(6) of Regulation No 659/1999 much longer the Member State would have were interrupted by the taking of the to wait to be certain that it would not, at decision, the decision would have legal some stage, be notified of a decision taken consequences for the addressee even before by the Commission within the 15-working- the period for bringing an action had begun day period. It would be contrary to the and thus before the legal act was able to be purpose of Article 4(6) of Regulation challenged. It is essential for the cohesive- No 659/1999, which is to create legal ness of the Community legal order and the certainty, if the significant event was the principle of comprehensive legal protection taking of the decision rather than notifi- that the legal consequences of a decision do cation thereof. not take effect at a different time from when the period for bringing an action starts to run.
68. Account must also be taken of the fact that it is not only the interests of Member (c) Application to the present case States which are affected by a decision of the Commission, but also those of the recipients of the aid. The grant or refusal of aid is usually of enormous economic or even existential significance to them. They may not be the immediate addressees of the decision, but the reliance they place on the fiction of approval being granted after 70. Consideration must therefore be given expiry of the 15-working-day period must to whether the Kingdom of Spain was be protected. notified of the contested decision before the prescribed period expired on 21 August 2000.
69. Finally, account must be taken of the fact that a decision to initiate the formal 71. A decision is properly notified if it procedure is an act that may be challenged reaches the addressee and puts him in a by an action for annulment. 30 The period position to take cognisance of it. 31 The for bringing a claim generally begins, decision is served as soon as it arrives in according to Article 230(5) EC, with 31 — Case 6/72 Europemballage and Continental Can v Com- mission [1973] ECR 215, paragraph 10, and Case 58/88 30 — See above, point 29 et seq. Olbrechts v Commission [1989] ECR 2643, paragraph 10.
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due course within the control of the Article 88(1) EC. The decision to initiate addressee. 32 the formal procedure is, therefore, defective in law.
3. Plea of inadequate statement of reasons 72. Notification was not effected by the faxes of 17 and 18 August 2000. These merely contained a brief announcement that the Commission had taken a decision under Article 88(2) EC, but not the 14-page decision itself. Firstly, a decision 74. In the event that the Court does not within the meaning of Article 249 EC endorse that reasoning, the Spanish Gov- must, according to Article 253 EC, give ernment's alternative plea must also be reasons which the communications of 17 considered. and 18 August 2000 did not. Secondly, the Commission did not at any time state that these communications were to be treated as the decision under Article 88(2) EC. Awareness that a relevant decision has 75. The applicant has argued that it is not been taken cannot be a substitute for notice apparent from the contested decision that of the decision itself. 33 the Commission considered the aid incom- patible with Community law. The decision is therefore formally defective in that it fails to give grounds.
73. Rather, notification was not effected until the contested decision was served on 76. As stated above, the decision, accord- 23 August 2000, and so after the deadline ing to Article 88(2) EC, is only capable of had expired. The contested decision could being challenged in so far as the aid not, therefore, interrupt the prescribed measures concerned are classified as new period in this case. The measures must, or existing aid. So far as the compatibility therefore, be seen as existing aid, so that of the aid with Community law is con- the formal procedure under Article 88(2) cerned, however, it constitutes only a EC would only apply once the Commission preliminary measure. In so far as it may and the Kingdom of Spain had failed to be unlawful — including in terms of pro- agree on appropriate measures under cedural formalities — the person con- cerned has sufficient protection in that it is open to him to challenge the final 32 — As the Court held in relation to declarations of intent, Case decision. The objection that the statement 8/56 ALMA v Hohe Behörde [1957] ECR 95, 99. 33 — See Case C-143/95 P Commission v Socurte and Others of reasons is inadequate cannot, therefore, [1997] ECR I-1, paragraph 31. be raised.
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77. In this case, however, that objection an action against the final decision offers could be understood as claiming that there the recipient adequate protection on this was an abuse of discretion, since the point. Secondly, the Spanish Government Spanish Government is essentially arguing has not presented any specific evidence to that the Commission only adopted the support the allegation of abuse of discre- contested decision to prevent the 15-day tion. period in Article 4(6) of Regulation No 659/1999 from expiry and not — as provided in Article 4(4) of Regulation No 659/1999 — because a preliminary examination of the measure gave rise to doubts about its compatibility with the common market. VII — Costs
78. But even if it is understood in that way 79. The decision on costs is based on this claim cannot succeed. Firstly, the Article 69(2) of the Rules of Procedure, decision cannot be challenged in the light which provides that the unsuccessful party of this objection either, because once again is to pay the costs if they are applied for.
VIII — Conclusion
80. I therefore propose that the Court:
(1) annul the decision of the Commission of 17 August 2000 (served by letter dated 22 August 2000 on 23 August 2000) in regard to all measures therein contained except the guarantee awarded in June 1998;
(2) order the Commission to bear the costs of the proceedings.
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