COMPETITION • EUROPEAN LAW • STATE AID
Pursuant to Article 296 TFEU, the Commission decisions must state the reasons on which they are based. The scope of the obligation to state reasons is assessed with regard not only to the wording of the decision and to all the legal rules governing the matter in question but also to its context. The statement of reasons must be appropriate to the nature of the measure and must show clearly and unequivocally the reasoning of the Commission, so as to inform the interested persons of the justification for the measure adopted and to enable the Court to exercise its power of review. In State aid matters, the requirement of a statement of reasons is assessed not only on the basis of the interest which the Member State to whom the measure is addressed may have in being informed but also on the basis of the interest which other persons having direct and individual concern may have in receiving explanations.
The decision must make it possible to clearly identify the measures classified as State aid. The Commission cannot merely refuse to classify a measure as existing aid where earlier decisions give the impression that the measure was a State aid when put into effect and that it could receive that classification. The Commission is required to examine seriously all the conditions which governed the setting of the amount of the aid. The statement of reasons must inter alia be particularly precise where the Commission implements, for the first time, a new and important policy. By contrast, this is not the case where the Commission adopts a decision following a complaint which relies on grounds misconceived in terms of the principles on which they were based. The decision may even lack reasoning where it comes in a context with which the State concerned is quite familiar or it sets forth the conditions of lawfulness laid down in the guidelines and brings satisfactory evidence as to the long-term viability and the proportionality of the aid.
The scope of the obligation to state reasons, particularly when assessing the effect of the aid measure on trade between Member States, depends, for a multisectoral aid, on the data and information communicated within the framework of the administrative procedure. However, the lack of reasoning cannot be justified by the fragmentary nature of the information sent during the administrative procedure, where the Commission did not use the powers to require the authorities of the Member State concerned to provide it with relevant information. In order to meet its obligation to state reasons for a decision holding aid incompatible, the Commission may merely establish that the measure in question is such as affecting trade between Member States and distorts or threatens to distort competition, without it being necessary to define the markets concerned or to carry out an economic analysis of the actual market situation, of the recipient undertaking’s market share, of the position of competing undertakings and the trade patterns between Member States. Lastly, the Commission is required to inform the complainant of the reasons why the elements of fact and law contained in its complaint were insufficient to show the existence of a State aid.
The Commission is not subject to a duty of detailed reasoning where it uses its injunction power for the recovery of an unlawful aid. In particular, the Commission is not required, when ordering the recovery of aid, to mention the exact amount of aid where its decision includes information enabling the recipient to find that amount out without overmuch difficulty.
