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Απόφαση στην υπόθεση 1179/2014/LP - Απόφαση του Ευρωπαίου Διαμεσολαβητή επί της υπόθεσης 1179/2014/LP σχετικά με την εμπλοκή «ενδιαφερόμενων μερών» σε έρευνες περί κρατικών ενισχύσεων που διενεργούνται από την Επιτροπή

Ο ενδιαφερόμενος υποστήριξε ότι, μετά την έναρξη ισχύος του Χάρτη των Θεμελιωδών Δικαιωμάτων της Ευρωπαϊκής Ένωσης, η εν λόγω πρακτική της Επιτροπής συνιστούσε παραβίαση του άρθρου 41 (δικαίωμα χρηστής διοίκησης) και του άρθρου 47 (δικαίωμα πραγματικής προσφυγής και αμερόληπτου δικαστηρίου) του Χάρτη.

Η Διαμεσολαβήτρια διενήργησε έρευνα επί του ζητήματος και διαπίστωσε ότι η πρακτική της Επιτροπής συνάδει με τους σχετικούς διαδικαστικούς κανονισμούς περί κρατικών ενισχύσεων και τη νομολογία των δικαστηρίων της ΕΕ όσον αφορά τα διαδικαστικά δικαιώματα των ενδιαφερόμενων μερών. Το γεγονός ότι δικαιούχοι και λοιπά ενδιαφερόμενα μέρη δεν έχουν πρόσβαση στο φάκελο της Επιτροπής σχετικά με τις κρατικές ενισχύσεις αντικατοπτρίζει τον περιορισμένο ρόλο τους στο πλαίσιο των ερευνών για κρατικές ενισχύσεις, καθώς και ότι μια έρευνα σχετικά με κρατική ενίσχυση απευθύνεται στο κράτος μέλος και όχι σε κάποιον δικαιούχο. Ως εκ τούτου, η Διαμεσολαβήτρια δεν διαπίστωσε κακοδιοίκηση.

▪ The background to the complaint

1. The complainant is a senior lawyer specialising in EU competition law. On 21 January 2014, he sent a letter to the Commissioner for Competition setting out his concerns regarding the limited involvement of third parties in State aid cases, in comparison with other fields of competition law (antitrust and mergers). The complainant noted that the procedure for investigating allegedly illegal State aid, which is based on Regulation 659/1999[1], and amending Regulation 734/2013[2] (the “Procedural Regulations”), is regarded as a procedure between the Commission and the Member State concerned only. In his view, this deprives beneficiaries of State aid, their competitors and other Member States ("interested parties") from their right to be informed about the on-going State aid procedure and to make useful submissions.

2. On 28 April 2014, the complainant sent an academic paper he authored to the Commission setting out detailed arguments as to why the current State aid procedural rules regarding the rights of interested parties are in breach of the European Convention on Human Rights (the “Convention”), and the EU Charter of Fundamental Rights (the “Charter”), namely the principles of good administration (Article 41 of the Charter) and the right to an effective remedy (Article 47 of the Charter).

3. In his academic paper, the complainant criticised the fact that interested parties have limited rights during a formal State aid investigation since they are given the opportunity to provide comments only following the Commission’s decision opening a formal investigation into a notified aid measure. He added that, in some cases, the Commission sought the views of interested parties, during the course of a formal investigation, but only with a view to supporting its own views. As regards consulting the beneficiary, the situation is even worse; he stated that the beneficiary of the aid can comment only with the consent of the Member State that granted the aid.

4. For the complainant, the limited role of interested parties under the State aid rules is in breach of the “right to an effective remedy and a fair trial”, enshrined in Article 6 of the Convention and Article 47 of the Charter.

5. The way to remedy this situation would be, he argued, to grant interested parties the right to get the evidence that exists in the Commission's State aid file before a decision is adopted and to grant them the right to comment on that evidence (as is the practice in antitrust cases).

6. In the complainant’s view, the procedural State aid rules also contravene the right to “good administration” of Article 41 of the Charter, which imposes on the Commission a legal obligation to be impartial, fair, consistent and open-minded when dealing with State aid cases. Moreover, given that the interests of the Member State granting the aid and the interests of the beneficiary may be in conflict, the principle of good administration also implies that the Commission should avoid such a contravention by granting access to its file to all interested parties, so that they can enforce their rights before a court.

7. Finally, the complainant considered it “very regrettable” that the Council, following the entry into force of the Charter, did not take the opportunity, when it adopted Regulation 734/2013, amending Regulation 659/1999, to provide interested parties with the right of access to the Commission’s State aid file.

8. On 13 June 2014, the Director-General for Competition, acting on behalf of the Commissioner for Competition, thanked the complainant for his reflections and concerns about the fairness of the State aid procedure. He noted that Regulation 734/2013 opened new possibilities to involve third parties in State aid proceedings, while respecting the fundamental character of a State aid investigation which is that a State aid decision is addressed to the Member State concerned only, and not to third parties.

9. As the complainant was not satisfied with the Commission's reply, he turned to the Ombudsman in July 2014.

▪ The inquiry

10. On 6 August 2014, the Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

Allegation:

The Commission's practice in its State aid investigations is contrary to Articles 41 and 47 of the Charter of Fundamental Rights.

Claim:

The Commission's practice in its State aid investigations should respect Articles 41 and 47 of the Charter of Fundamental Rights, in particular (i) by making available to interested parties every document in the Commission's file (during the preliminary investigation and the in-depth investigation phase), subject to the protection of confidential information; and (ii) by recognising that it has the obligation to act impartially throughout the investigation and thus give interested parties whose interests may be opposed the opportunity to make submissions.

11. When opening the inquiry, the Ombudsman informed the Commission that the complainant's other allegation and claim that the procedural State aid rules are contrary to the Charter and would have to be amended, were inadmissible because that aspect (the merits of EU legislation) was a choice of the legislature and could not constitute maladministration.

12. On 23 October 2014, the Ombudsman received observations from two legal practitioners in support of the complaint (the "supporting parties") and decided to add them to the file of the case, and to ask the Commission for its comments.

13. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by all the parties.

▪ Allegation that the Commission's practice in State aid investigations is contrary to Articles 41 and 47 of the Charter of Fundamental Rights

▪ Arguments presented to the Ombudsman

14. In support of his allegation, the complainant referred to his detailed arguments set out in his academic paper (see above, paragraphs 3-7). His main contention is that the limited rights that interested parties enjoy in the State aid administrative procedure conducted by the Commission are contrary to Articles 41 and 47 of the Charter, and that the Commission should make available to interested parties all documents in its file and allow them to make submissions.

15. In its reply of 27 October 2014, and of 8 February 2015 on the complaint and the supporting parties' observations, the Commission welcomed the fact that the Ombudsman declared the complaint inadmissible insofar as it concerned the legality of the procedural Regulations, but argued that its administrative State aid practice cannot be dissociated from the relevant legislative framework and the jurisprudence of the EU Courts[3].

16. The Commission argued that its State aid practice has always been based on respect for fundamental rights, long before the incorporation of the Charter in EU law. Since 1970, the EU Courts have consistently held that respect for fundamental rights forms an integral part of the general principles of EU law whose observance the Court of Justice itself ensures[4]. In that regard, the Court of Justice has expressly recognised the general principle of EU law, inspired by those fundamental rights, that everyone is entitled to a fair legal process[5]. To imply to date that the past case-law of the Court of Justice has been permissive with regard to the protection of fundamental rights would be tantamount to putting into question the entire Court's jurisprudence in this field.

17. The Commission stated that the administrative procedure regarding the granting of a State aid is initiated against the Member State concerned, not against the beneficiary or any other "interested parties". This is why the jurisprudence of the EU Courts confers on such parties merely the role of information sources[6]. Thus, interested parties do not have a right, under the State aid rules, to consult the documents on the Commission’s administrative file. As the Court ruled in TGI, if those interested parties were able to obtain such access, the system for the review of State aid would be called into question[7]. What that system does provide is that, when the Commission decides to initiate the formal investigation procedure, it is obliged to publish a notice in the Official Journal and to invite all interested parties to submit their observations, in full respect for the principle of good administration. A decision by the Commission not to open a formal investigation in a particular State aid case, with the consequence that interested parties are deprived of the opportunity to submit observations, can be adjudicated upon by the EU Courts.

18. The Commission also rejected the complaint’s main thesis that the Charter requires a review of the way the State aid procedures are carried out. The EU Courts have repeatedly confirmed that the Charter is not intended to alter the nature of the review of State aid established by the Treaty or to confer on third parties a right of scrutiny, which Article 108 TFEU does not provide[8].

19. Regarding in particular the role of the beneficiary of an aid, the Commission argued that beneficiaries have no “right to receive an aid”. On the contrary, the granting of State aid is, in principle, forbidden by the Treaty. State aid can be declared compatible and thereby authorised by the Commission only under the strict conditions set out in Article 108 of the Treaty. It is the Member State that decides to grant aid to an undertaking, and it is therefore the Member State that has to notify such a plan to the Commission for approval. Furthermore, beneficiaries of aid declared incompatible by the Commission incur no financial liability nor can any penalty be imposed on them by the Commission. An order by the Commission that the Member State concerned should recover any incompatible aid serves merely to restore the undistorted conditions of competition and has no punitive implications for the beneficiary (it does not constitute a fine imposed on that company).

20. The Commission also said that the complainant did not provide any example or facts to substantiate his allegation that the Commission's practice, regarding the treatment and involvement of interested parties in State aid procedures, varies from case to case.

21. In conclusion, the Commission argued that its State aid practice is fully compliant with the Code of Good Administrative Behaviour, and in particular, with Principle 1 (Lawfulness - acting in accordance with the law, applying the rules and procedures laid down in the EU legislation).

22. In his replies of 14 November 2014 and 23 March 2015, the complainant stated that his complaint did not concern the legality of the Procedural Regulations, but whether the practice of the Commission in the State aid field is contrary to the Charter. The Procedural Regulations do not oblige or authorise the Commission to refuse access to its files to interested parties that have the required standing to challenge a Commission’s decision before the EU Courts. The Commission is thus free to comply with the Charter without amending the Procedural Regulations. However, if the Procedural Regulations do actually support the Commission’s practice in this area, they would thus be contrary to the Charter and accordingly invalid.

23. The complainant took issue with the Commission’s reliance on the TGI judgment (see paragraph 17 above) arguing that that case is irrelevant, as it concerned public access to documents under Regulation 1049/2011, and not the application of the State aid rules themselves.

24. Furthermore, he contended that the Commission had failed to address the other example he had raised in his academic paper. This example concerned the circumstances of a competitor of a State aid beneficiary seeking access to the Commission's State aid file in order to have an "effective remedy" under Article 47 of the Charter. An “effective remedy” in such a case would be to claim before a national court that a Member State pay it damages for breach of the State aid rules.

25. Finally, the complainant argued that the Court’s jurisprudence, according to which interested parties have a right to be involved during the State aid investigation stage "to the extent appropriate in the light of the circumstances of the case"[9], means that it would indeed be appropriate for interested parties to have access to the Commission's file.

▪ The Ombudsman's assessment

26. The thrust of the complainant’s allegation is that “interested parties” (that is, competitors and the beneficiary) should have the same rights of access to the Commission State aid file as the Member State concerned. In the complainant’s view, this right derives from the Charter, and in particular, from the right to an effective remedy and a fair trial (Article 47), and the principles of good administration (Article 41).

27. The complainant argued that this access is necessary to protect the right of a beneficiary to challenge a Commission State aid decision before the EU Courts. He also argued that this access is necessary to protect the possibility for a competitor of a beneficiary to bring a case before a national court for damages against the Member State that granted the illegal State aid. In both cases, the complainant considers that the right to an effective remedy and a fair trial, guaranteed under Article 47 of the Charter, is seriously undermined by the fact that interested parties are not allowed access to the Commission’s State aid file.

28. The complainant has also argued that the entry into force of the Charter implies that the jurisprudence of the EU Courts regarding the protection of fundamental rights under EU law, which predates the Charter’s entry into force, is no longer relevant. As regards the existing State aid legal framework, the complainant takes the view that the Procedural Regulations in force do not oblige or authorise the Commission to refuse access to its State aid file to interested parties. The latter is free to grant interested parties full access to its State file and thus to comply with the Charter.

29. As regards Article 41 of the Charter, the complainant considers that the obligation on the Commission to conduct fair and impartial formal State aid investigations also implies that interested parties should have access to the State aid file.

30. The Commission has rejected the applicant’s thesis on the grounds that the EU legislature has set out a very clear procedural legal framework for the control of State aid, granting interested parties specific procedural rights that reflect their limited role in this kind of procedure. If interested parties were to be given access to the State aid file, the whole system for the review and control of State aid in the EU, as conceived by the EU legislature and upheld by the jurisprudence, would be called into question.

31. In order to examine whether the Commission’s practice of refusing interested parties access to its State aid file is in breach of Articles 41 and 47 of the Charter, it is important to identify (a) the procedural rights currently granted to interested parties involved in State aid procedures, and then (b) how these rights are upheld by the Court. The Ombudsman notes that this inquiry is not intended to pronounce on the legality of the relevant EU legislation. It is not for the Ombudsman to take a view on the compatibility of EU legislation with the Treaty provisions or with the Charter. Rather, the Ombudsman will examine whether the Commission’s administrative practice of refusing interested parties access to its State aid file is in breach either of the relevant EU rules or of the Court’s jurisprudence in this field.

(a) the Procedural Regulations

32. The first procedural rules regarding the application of the Treaty State aid rules were laid down by Council Regulation 659/1999. That Regulation codified the Commission’s previous State aid practice and was based on the Court’s jurisprudence in this field. It did not confer on interested parties any substantial procedural rights other that the possibility to “submit comments pursuant to Article 6 following a Commission decision to initiate the formal investigation procedure” (Article 20.1), and to “inform the Commission of any alleged unlawful aid and any alleged misuse of aid”(Article 20.2).

33. Regulation 743/2013[10], adopted four years after the entry into force of the Lisbon Treaty and of the Charter, amending Regulation 659/1999, did not alter the scope of the procedural rights already conferred on interested parties. It did, however, make explicit their status as an information source only. It also provided that, although the Commission can choose to ask interested parties for information necessary to complete its formal investigation, it can ask such information from the beneficiary of a State aid measure only if the Member State concerned has agreed to that request being made. The fact that interested parties are not therefore “parties to the procedure” was also made explicit in Recital 4 of that Regulation: “in the light of the special relationship between aid beneficiaries and the Member State concerned, the Commission should be able to request information from an aid beneficiary only in agreement with the Member State concerned. The provision of information by the beneficiary of the aid measure in question does not constitute a legal basis for bilateral negotiations between the Commission and the beneficiary in question”.

34. Neither Regulation 659/1999, nor amending Regulation 743/2013 included any provision providing interested parties with a right of access to the Commission’s State aid file or any other procedural right that went beyond the mere submission of comments following the opening of a formal investigation.

35. Therefore, in the light of the very limited procedural rights conferred on interested partied by the EU legislature, the Ombudsman does not share the complainant’s view that there is nothing in the Procedural Regulations that would prevent the Commission from granting interested parties access to its State aid file. The limited procedural rights conferred on interested parties and the beneficiary, and the fact that the latter has not the right to engage in bilateral negotiations with the Commission in relation to the aid notified by the Member State concerned, strongly implies that the Commission would be in breach of the Procedural Regulations were it to grant interested parties access to the State aid file. If the EU legislature wanted to confer such an important right on interested parties, it would have done so explicitly, and in any event, it would not have made the possibility for the Commission to seek information from the beneficiary subject to the prior approval of the Member State concerned.

36. The Ombudsman also notes that in the TGI case (see below) the Court of Justice found that Regulation 659/1999 does not confer any right of access to the Commission’s State aid file on interested parties. The complainant argues that the TGI case is not relevant to the present inquiry since it concerns public access to documents and not access to the State aid file under Regulation 659/1999. It is true that the Court made the above assertion (as regards the scope of  Regulation 659/1999 ) in order to then deduce, from that assertion, that the public access rules could not grant broader rights than those granted under Regulation 659/1999. However, the fact that the Court’s statement (as regards the scope of the right of access under Regulation 659/1999) was made in that context does not take from the fact that the Court has clearly stated that access to the State aid file under Regulation 659/1999 is limited.

37. Since the existing Procedural Regulations do not grant interested parties any right of access to the Commission’s State aid file, the question which needs to be examined next is whether the jurisprudence of the Court regarding the procedural rights of interested parties, and respect for their fundamental rights, require the Commission, when carrying out a formal State aid investigation, to provide interested parties with access to its State aid file.

38. However, before doing so, the Ombudsman will first address the complainant’s argument that the jurisprudence of the Court regarding respect for fundamental rights and the procedural rights of interested parties, which predates the entry into force of the Charter, is no longer relevant.

The jurisprudence of the EU Courts and the entry into force of the Charter

39. Prior to the entry into force of the Charter, the legal basis for fundamental rights at EU level consisted essentially of the references made in the jurisprudence of the Court of Justice to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and to those fundamental rights which flow from the constitutional traditions common to the Member States. This is now reflected in Article 6 TEU which provides that:

Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’ 

40. It is important to clarify that the Charter does not create new rights; rather, it recognises certain “rights, freedoms and principles” which already existed at the time of its proclamation. Thus, it is not the case that the Charter required,  for the first time in the EU legal order, that EU law complies fully with fundamental rights and freedoms. The Charter simply expanded the legal basis created by references in the jurisprudence of the Court to the “Convention” and to the constitutional traditions that are common to the Member States. The Charter is founded on the basis of ‘established law’, that is, it brings together the fundamental rights already recognised by the EU Treaties, the constitutional principles common to the Member States, the Convention and the Social Charters of the EU and the Council of Europe. It also responds to calls for transparency and impartiality in the functioning of the Community’s administration by incorporating the right to good administration and of access to administrative documents, drawing on key elements of the case-law of the Court of Justice in this area.

41. Thus, the Ombudsman finds no support for the complainant’s argument that, since the first procedural Regulation 659/1999 was adopted before the Charter came into force, the jurisprudence of the EU Courts regarding compliance by the Commission with the fundamental rights in the field of the application of the State aid rules is no longer relevant. In order for it not to be relevant, it would have to be demonstrated that the Charter in some way derogates from or modifies the prior existing law. There is no basis to consider that any such derogation or modification, at least as regards the procedural rights at issue here, has occurred.

42. Nor does the Ombudsman consider that there is anything to support the view that when the Council adopted, four years after the entry into force of the Lisbon Treaty, Regulation 734/2013 amending Regulation 699/1999, it had not fully taken account of the implications of the Charter. As stated above, the Court of Justice had long before the entry into force of the Charter made the issue of the legality of EU legislation subject to respect for fundamental rights.

43. Therefore, what needs to be examined next is whether the Court’s jurisprudence regarding respect for fundamental rights and, in particular, the right to an effective remedy and a fair trial, and the right to good administration implies that the Commission should provide interested parties with access to its State aid file.

The EU Courts’ jurisprudence regarding the role and rights of interested parties in State aid procedures

44. The Ombudsman notes that, according to settled case-law, the right of defence must be respected in all proceedings which could result in a measure adversely affecting the person against whom (or which) the proceedings have been initiated. This is a fundamental principle of EU law which must be guaranteed even in the absence of specific rules. This principle requires that the person concerned be given the opportunity, during the administrative procedure, to make known in an effective manner its views on the truth and relevance of the facts, objections and circumstances put forward by the Commission[11].

45. However, as the Court of Justice has ruled in a number of cases brought by beneficiaries of State aid and other interested parties, the administrative procedure relating to State aid is initiated solely against the Member State concerned.

46. This  means that only that Member State, as the addressee of the contested decision, may rely on the rights of defence[12]. Beneficiaries, and any other interested party, cannot therefore seek to engage in an adversarial debate with the Commission in the same way as the Member State concerned[13].

47. According to the Court, it follows from this important consideration that, far from enjoying the same rights of defence as those against whom a procedure has been instituted, beneficiaries and other interested parties, have the right to be involved in the administrative procedure only to the extent appropriate in the light of the circumstances of the case.

48. The complainant, without contesting the fact that interested parties do not have any rights of defence, has essentially argued that in the light of the fundamental rights enshrined in Articles 41 and 47 of the Charter, it would be indeed appropriate that interested parties, and especially beneficiaries, get access to the Commission’s State aid file.

49. In that regard, the Ombudsman notes that the issue of the scope and nature of the procedural rights of interested parties in State procedures has been the subject of a number of consistent rulings by the EU Courts. More particularly, interested parties have already raised before the EU Courts the exact same arguments as those raised by the complainant in this case.

50. In particular, in Case T-198/01[14],the Court was asked to decide whether the limited role reserved for beneficiaries in State aid procedures, compared to the role of Member States, gives rise to a breach of the fundamental rights enshrined in the European Convention on Human Rights, and in particular, the right to an effective remedy and a fair trial (now also provided for in Article 47 of the Charter), the right of defence, the right to be heard before a decision is taken, and the right to good administration (now Article 41 of the Charter).

51. As with the complainant in this case, the applicants argued in the above mentioned case that the right to be heard and the principles of good administration entail a right of access to the Commission’s State aid file.

52. In its judgment, the Court noted that that the procedure for reviewing State aid, in view of its general scheme, is a procedure initiated in relation to  the Member State responsible for granting the aid. Therefore, interested parties, cannot claim a right to debate the issues with the Commission in the same way as may the Member State in question. The Court also stressed that none of the provisions on the procedure for reviewing State aid reserves a special role, among the interested parties, to the beneficiary of an aid.

53. In that judgment, the Court dealt with another argument, also raised in this case by the complainant, according to which interested parties should have the same access to the Commission State aid file as have undertakings involved in Commission’s antitrust and merger investigations. The Court rejected any parallel between the rules on State aid, on the one hand, and the rules of competition law and the control of concentrations, on the other hand, on the grounds that competition and merger procedures are initiated against specific undertakings – which, as a result, enjoy specific procedural rights – and not against a Member State as is the case in State aid. The Court concluded that since interested parties cannot rely on a right to participate in an adversarial procedure with the Commission, they have no right of access to the Commission’s file.

54. This was once again reaffirmed by the Court in the recent appeal in the TGI case[15]. In that judgment, in order to decide whether the Commission could rely on a general presumption under Article 4(2) of Regulation 1049/2001 to refuse interested parties access to its State aid file, the Court ruled that under the State aid regime, “interested parties, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file (…)”. For the Court, “if those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question[16]. The Ombudsman considers that the same would hold true if interested parties were to get access to the Commission State aid file on the basis of the legal provisions either of Article 41 or Article 47 of the Charter.

55. The complainant has argued that the recent TGI judgment is irrelevant as it concerned the interpretation of Regulation 1049/2001, not the Procedural Regulations.

56. The Ombudsman does not share this view. As the Court emphasized in the recent TGI, if it is true that the right to consult the administrative file in the context of a State aid investigation, and the right of access to documents under Regulation 1049/2001, are legally distinct, “the fact remains that they lead to a comparable situation from a practical point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain all the observations and documents submitted to the Commission, and, where appropriate, adopt a position on those matters in their own observations, which is likely to modify the nature of such a procedure”.[17]

57. Therefore, the Ombudsman comes to the conclusion that there is nothing in the jurisprudence of the EU Courts that could support the complainant’s view that to refuse interested parties access to the Commission’s State aid file would be a breach of procedural rights, and in particular, of the right to an effective remedy and a fair trial recognised at Article 47 of the Charter.

58. The complainant argues that the obligation on the Commission to carry out a fair and impartial State aid procedure under Article 41 of the Charter (right to good administration) implies that interested parties should have the same right of access to the Commission’s State aid file as the Member State concerned. This appears to disregard the fact that a State aid procedure, as stated above, is not initiated against interested parties, but against a Member State only. Thus, the Ombudsman fails to see in which circumstances the right to good administration of Article 41 of the Charter, and in particular Article 41, paragraph 2 a) and b), could justify granting interested parties access to the Commission State aid file. In any event, any notion of “fairness” and “impartiality” in the carrying out by the Commission of a State aid procedure cannot go as far as implying that interested parties should be treated in the same way as the Member State concerned against which the Commission’s investigation is directed.

59. In circumstances where, as the complainant has argued, the interests of the Member State concerned may not always coincide with those of the beneficiary, the Ombudsman cannot see how this obliges the Commission to acknowledge a conflict of interests and to remedy it by granting the beneficiary access to the State aid file.

60. As the Commission has pointed out, beneficiaries of State aid have no right, as such, to receive aid. On the contrary, it is for the Member State concerned to decide whether and under which conditions to provide financial or other similar support to an undertaking, be it as part of a rescue and restructuring aid or as part of a regional, sectoral, cultural or other State policy considerations. As a result, it is the interests of the Member State concerned that are at stake once the formal investigation procedure is initiated by the Commission, not those of the beneficiary or of any other interested party. The fact that the interests of the Member State concerned and those of the beneficiary or any other interested party may or may not always coincide in the context of a State aid procedure has no relevance as regards the issue of whether or not access to the file should be given. If the interests happen to coincide, that would not mean that a Member State, when it defends itself in a State aid procedure, is somehow acting as a proxy for the beneficiary. Conversely, if in a particular case a Member State does not have the same interests as the beneficiary, this would not imply that, somehow, the beneficiary should be given the right to intervene in the administrative proceedings as if it were the Member State under investigation.

61. The complainant has also argued that other interested parties, and in particular the competitors of a beneficiary, should also have a right of access to the Commission’s State aid file in order to enjoy an effective remedy and a fair trial when claiming damages from a Member State before a national court for breach of EU law.

62. The Ombudsman notes that, under EU law, any competitor of a beneficiary of an aid that has been declared incompatible by the Commission can claim damages from the Member State concerned for breach of the State aid rules. Such a claim is made to the national courts. With a view to strengthening further the EU State aid discipline, the Commission has also published a detailed Notice on the enforcement of State aid law by national courts[18], which provides national courts and third parties, including competitors, with detailed guidance about the remedies available in the event of a breach of State aid rules and the practical application of those rules.

63. In particular, Section 3.2 of that Notice specifically provides that, given the important and complex role which national courts play in State aid enforcement, national courts can request the Commission's opinion on relevant issues concerning the application of the State aid rules, including “the legal prerequisites for damages claims under Community law and issues concerning the calculation of the damage incurred”.

64. The Ombudsman notes that the complainant has not, given the context described in the previous paragraph, provided any concrete example or arguments to support his view that the fact that competitors of a beneficiary do not themselves have access to the Commission’s State aid file undermines their right to an effective remedy and a fair trial when seeking damages before national courts. Thus, given the detailed rules that have been put in place by the Commission with a view to making the enforcement of State aid law by national courts more effective, it is not open  to  the Ombudsman to uphold that part of the complainant’s allegation.

65. Finally, the complainant has argued that the Commission’s practice in this field has not always been consistent, since in some cases beneficiaries have enjoyed wider procedural rights in exchange for providing support for the Commission’ own views. The Ombudsman notes that, as the Commission has also pointed out, the complainant has not provided any concrete example of any such cases. Therefore, the Ombudsman has not been able to identify any possible instance of maladministration in that regard.

66. The Ombudsman concludes that the Commission practice - once it has initiated the formal State aid investigation procedure against a Member State - of refusing to provide interested parties, including the beneficiary, with access to its State aid file  is not in breach either of the relevant procedural legal framework or of the jurisprudence of the EU Courts concerning the role and rights of interested parties in State aid procedures. Thus, the Ombudsman does not find any maladministration.

▪ Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman finds no maladministration by the Commission

The complainant and the Commission will be informed of this decision.

Emily O'Reilly

European Ombudsman

Strasbourg, 23/09/2016

 

[1] Council Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union, OJ L 83, 27.03.1999, p. 1.

[2] Council Regulation No 734/2013 of 22 July 2013 amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ L 204, 31.7.2013, p. 15.

[3] Case C-274/12 P, Telefónica v Commission, EU:C:2013:852, paragraphs 56-57.

[4] Case 11/70, Internationale Handelsgesellschaft, EU:C:1970:114, paragraph 4.

[5] Case C-7/98, Krombach, EU:C:2000:164, paragraph 26 and C-185/95 P Baustahlgewebe v Commission, paragraphs 20 and 21.

[6] Joined Cases T-371/94 and T-394/94 British Airways and Others and British Midland Airways v Commission, EU:T:1998:140, paragraphs 44 and 58-65.

[7] Case C-139/07 P, Commission v Technische Glaswerke Ilmenau, EU:C:2010:376, paragraphs 57-59.

[8] Case T-468/08, Tisza Erőmű v Commission EU:T:2014:235, paragraphs 204 to 207, and Case T-140/13, Netherlands Maritime Technology Association v Commission, EU:T:2014:1029, paragraph 60.

[9] Case T-468/08, Tisza Erömü v Commission, EU:T:2014:235.

[10] OJ L 204, 31.7.2013, p. 15. On 13 July 2015, Council adopted Regulation 2015/1589, codifying Regulation 659/1999 as subsequently amended, OJ L 248, 24.9.2015, p. 9.

[11] See judgments of 10 July 1986 in Belgium v Commission, 234/84, ECR, EU:C:1986:302, paragraph 27; 9 July 2008 in Alitalia v Commission, T-301/01, ECR, EU:T:2008:262, paragraph 169; 15 December 2009 in EDF v Commission, T-156/04, ECR, EU:T:2009:505, paragraph 101; and 12 May 2011 in Région Nord-Pas-de-Calais and Communauté d’Agglomération du Douaisis v Commission, T-267/08 and T-279/08, ECR, EU:T:2011:209, paragraph 70.

[12] See in Joined Cases T-425/04 RENV and T-444/04 RENV, judgment of 1 July 2009 in Operator ARP v Commission, T-291/06, ECR, EU:T:2009:235, paragraph 35 and case-law cited.

[13] See judgments of 24 September 2002 in Falck and Acciaierie di Bolzano v Commission, C-4/00 P and C-5/00 P, ECR, EU:C:2002:524, paragraphs 81 and 83; Alitalia v Commission, op.cit., EU:T:2008:262, paragraph 170; and EDF v Commission, op. cit. EU:T:2009:505, paragraph 102.

[14] Case T-198/01, Technische Glaswerke Ilmenau v Commission, ECLI:EU:T:2004:222, paragraphs 177-190.

[15] Case C-139/07 P Commission v Technische Glaswerke Ilmenau. In that case the Commission sought the annulment of the judgment of the Court of First Instance (now ‘the General Court’) of 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission, which annulled a Commission’s decision that refused access to documents concerning procedures for reviewing State aid granted to Technische Glaswerke Ilmenau GmbH (‘TGI’).

[16] Case C-139/07 P, op. cit., paragraph 58.

[17] Case C-139/07 P, op. cit., paragraph 59.

[18] OJ C 85, 9.4.2009, p. 1.