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Case Law of the Court of Justice

15 Nov 2011

In this appeal case, Kingdom of Belgium, supported by the European Commission, sought to have set aside the judgment of the Court of First Instance in Case T-388/03 Deutsche Post and DHL International v Commission, annulling the Commission’s decision not to raise objections. The contested decision was a decision not to raise objections, adopted under Art. 4(3) of Regulation 659/1999, the lawfulness of which depended on whether there were ‘doubts’ as to the compatibility of the aid with the common market.

The Court pointed out that if, following the preliminary examination, it found that the contested measure raises doubts as to its compatibility with the common market, the Commission was required to adopt a decision initiating the formal investigation procedure under Art. 88(2) EC and Art. 6(1) of that regulation (see Commission v Kronoply and Kronotex).

The Court stated that the concept of ‘doubts’ referred to in Article 4(4) of Regulation No 659/1999 is an objective one and their existence must be sought not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied (see Case C-431/07 Bouygues and Bouygues Télécom v Commission).

The Court confirmed that the General Court’s of First Instance analysis of the circumstances of the adoption and the content of the contested decision highlighted the doubts that the Commission should have had as to the compatibility of the notified measure with the common market, doubts which were adequate to support the conclusion that it should have initiated the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999.

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